Constitutionally Guaranteed Free Speech Or Seditious Conspiracy?

PJABBER

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Feb 8, 2001
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While the good progressive citizens of Monterey may have been led to believe that free speech is reserved to a spot under an unintelligible sign (call the City Attorney with complaints and for clues on how to find the sign!) the rest of us Americans have the impression that free speech is Constitutionally guaranteed and can be practiced everywhere.

The following article references two rights. The right of free speech and the right to reasonable bail. These rights have, over time, been defined through the challenges made by legislation and by court rulings. It is a never ending battle to preserve them but they are part of what America is all about.

This week, U.S. District Judge Victoria Roberts, a liberal Clinton appointee, ordered the release of the Hutaree militia over the objections of prosecutors. Roberts ordered the release of the defendants on more than 24 bond restrictions – including house arrest, electronic monitoring and curfews with no access to firearms – saying the conditions would safeguard the public.

In doing so, Judge Roberts rendered an extraordinary ruling confirming both rights.

The Hutaree militia remains incarcerated still, as the prosecutors appealed the judge's decision Thursday to the 6th Circuit Appellate Court, which has not yet ruled on the bond issue.

No matter how you may feel about the merits of the Hutaree case, Judge Robert's decision is well worth reading as a primer toward understanding our basic Constitutional rights.

Judge Robert's Order revoking Hutaree detention

Judge’s Ruling a Victory for Hutaree and Free Speech

by K. Douglas Lee

Earlier this week, on May 3rd, we witnessed liberty in action: a Clinton-appointed federal judge took the government to task over its continued holding of the Hutaree “Christian militia” members in Michigan.

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They can try to spin it any way they want, but the government lost this one, big-time. There are two fundamental rights implicated in the judge’s ruling — free speech, and the right to a reasonable bail. Both of these fundamental, constitutionally protected rights are absolutely vital to our system of ordered liberty, and to the very existence of our republican form of government. Judge Roberts’ ruling thus deserves much wider discussion than the old media has given it; it should be printed out and taught to every high-school kid in the US. It shows how our republic — and our criminal justice system — are meant to work.

Is this a politically motivated prosecution?

It is no secret that even before President Obama was elected, the left began focusing once again on what they call “right wing militia” groups. To hear them talk, every single militia member is a budding young Timothy McVeigh. Thus, there was some alarm but not a great deal of surprise when nine members of the “Christian militia” group called the Hutaree were arrested in Michigan. Now, thanks to an extensive order written by the federal judge in charge of the case, we now know that the case against the Hutaree is thin, and based almost entirely on the theory that they exceeded the allowable bounds of free speech. One could very well argue that by definition this is a politically motivated prosecution, since it focuses on what the government is terming “hate speech.”

I’ve included a copy of the Court’s ruling with this post — please take the time to read it. You will know a great deal more about the evidence against these men. You may be fairly shocked at at paucity of evidence against them. You may even wonder how easy it might be to start with “fringe” groups like the Hutaree, and then draw an ever tighter stranglehold around the free speech rights of other “radical right wing groups,” like your local TEA Party members. Remember, these men never committed any act of violence against any person — they are being prosecuted for their political speech alone.

Perhaps you are sympathetic to the Hutaree, perhaps you are not, but every one of us must understand that what happens to them affects the liberty interests of every person in the USA. Their case is clearly one in which we are being called upon to determine the boundaries of free speech. At stake is much more than your freedom ability to speak out and criticize the government that you elect and that you put in power — what’s at stake is your freedom from imprisonment for voicing your political views.

Do not be misled; the Hutaree case is all about the limits of your first amendment right to free speech — specifically, your right to be free from imprisonment for engaging in political speech that others find offensive and dangerous. However, “free speech” is not the only liberty-based value at stake; the age-old right to bail has been attacked by the government, who have sought to keep the Hutaree members incarcerated until trial. Fortunately, for all liberty-loving Americans, the federal judge in charge of the case has sided squarely with truth, justice and the American Way.

Bail — it’s not just for criminals, it’s for all of us.


In America, our values dictate that we should usually wait until a person has actually been convicted of wrongdoing before we incarcerate him; not always, but usually. After all, what good is the right to a fair trial if you can be forced to “do the time” even when you did not “do the crime”?

The Eighth Amendment to the Constitution prohibits “excessive bail,” and was based on the English common law system that we had inherited. The right to a reasonable bail was one of the things that the English (and later, the Americans) proudly claimed made them “free.” It should thus be no surprise that in passing laws regarding pre-trial detention, “Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial.” United States v. Orta, 760 F.2d 887, 891-92 (8th Cir. 1985).

However, bail can be denied in certain circumstances, and the Hutaree members are charged with some very serious crimes: (1) Seditious Conspiracy, (2) Attempt to Use Weapons of Mass Destruction, (3) Carrying, Using, and Possessing a Firearm During and in Relation to a Crime of Violence, and (4) Teaching/Demonstrating Use of Explosive Materials (though only two Hutaree members are charged with the last crime). In fact, Judge Roberts pointed out that “[t]wo of the charges against the Defendants – Attempt to Use Weapons of Mass Destruction; and, Carrying, Using, and Possessing a Firearm During and in Relation to a Crime of Violence” are so serious that they “create a presumption that no condition, or combination of conditions, will reasonably assure Defendants’ appearance in Court as required, and the safety of the community.” Order, page 7. This means that anyone who is merely charged with these crimes will have a very hard time convincing a court that he should be released pending trial, even if the evidence against him is less than convincing.

So, these charges flip the standard upside down — merely be charged with these crimes creates a presumption that the defendant cannot be released pending trial. Once can see why the judge appears very uncomfortable with this new standard. After all, the government has tremendous leeway in its ability to charge crimes. Any of us who have defended criminal cases in court know that prosecutors routinely charge people in a way that forces them into a box — either plead to something lesser, or go to trial and risk many more years in prison. Prosecutors also routinely charge cases in such a way as to insure that defendants will stay in jail for several months — even years, sometimes — before they go to trial. It becomes far easier to get a conviction this way.

I’m not passing judgment on the prosecutors who use these tactics, though, because altogether I believe that the criminal justice system is about as fair as it can be. However, when the charges are political in nature, there is a great danger that these tactics can be used to squelch political dissent. Instead of keeping society safe and protecting our liberty, these tactics can be used to create an authoritarian police state.

Judge Roberts, however, pointed out that ” the government may not merely come before the trial court, present its indictment, and thereby send the defendant off to jail, foreclosing any further discussion. Rather the defendant . . . must be afforded the opportunity for a hearing at which he may come forward with evidence to meet his burden of production, leaving on the government the ultimate burden of persuasion.” Order, page 7, citing United States v. Hurtado, 779 F.2d 1467, 1478 (11th Cir. 1985). So the court-appointed federal public defenders submitted their arguments to the court on behalf of the Hutaree, with results that have apparently stunned the prosecutors.
“Defendants believe that because the weight of the evidence is insubstantial, the Court should have serious reservations about denying them bail… the Government failed to persuade the Court that Defendants must be held until trial.”
In essence, the court has smacked the prosecutors in the face by saying that there is so very little weight to the evidence in their case that, even though two of the charges are extremely serious, the defendants cannot be held without bail pending trial:
Nonetheless, the weight of the evidence the Government has against Defendants is an important consideration. In fact, the seriousness of the charged offenses, the weight of the evidence, and whether the Defendants are a danger to the community, are inextricably intertwined; the Court’s own Pretrial Services Agency, which makes bond recommendations, concluded that but for the seriousness of the offenses charged, the Defendants are all people it would normally recommend for release on bond.
Allow me to translate this for you: the evidence was thin enough that the Court would not normally hold these men without bail. However, because two of the charges are so serious, they have been held without bail until now.

Since the charges are so serious, the judge has to be pretty convinced that the government’s case is very weak before she will let the men out on bail. Here is the key to the entire case:
The United States is correct that it need not wait until people are killed before it arrests conspirators. But, the Defendants are also correct: their right to engage in hatefilled, venomous speech, is a right that deserves First Amendment protection. Because speech is so much a part of the Government’s case, Defendants urge the Court to look carefully at the evidence in making its bond decision. Defendants believe that because the weight of the evidence is insubstantial, the Court should have serious reservations about denying them bail. Due to the complexity of the case, and the number of Defendants, Defendants say they could be in jail for a long time, awaiting trial.
Did you get that, liberty-lovers? The right to engage in “hatefilled, venomous speech” is protected by the First Amendment. This is definitely not the left’s understanding at all; nowadays, the Liberal/Progressive movement treats any speech that they do not like as “hate speech,” and are busy passing laws to try to criminalize it. For the left, Judge Roberts’ ruling must really sting.

The Court did address the problem that the difference between protected free political speech and illegally conspiring to commit serious, violent crimes is “not always clear.” The Court made cited “the clear principle that crime masquerading as speech deserves no First Amendment protection.” Yet, despite the undeniably high standard that the Hutaree members were subjected to, and the very lenient standard that the government’s case was held to, Judge Roberts found that (1) Defendants met their burden to produce evidence in favor of release; and (2) the Government failed to persuade the Court that Defendants must be held until trial.”

In short, the evidence of actual wrongdoing on the part of the Hutaree members was just far too thin to justify holding them without bail. Despite a two-year investigation into the group, despite the seriousness of the charges, despite even the videotaped evidence of the UN flag being burned by the Hutaree (to the shock and horror of Liberals everywhere), the Judge did not find the evidence against them to amount to anything other than hate-speech.

True, this is not a “not guilty” finding, but it certainly does not bode well for the government’s case. In this case, the proof was considered along with the serious nature of the charges, and there was a presumption against releasing the men. Convictions, however, require proof “beyond a reasonable doubt,” and the government must overcome a presumption of innocence at trial.

They are not out of the woods yet, but certainly, the Hutaree members have great cause for celebration today.

And, regardless of the ultimate outcome of this prosecution, all liberty-loving Americans have cause to celebrate Judge Roberts’ ruling. It is a victory for us all.

The judge’s order may be found below:

Order revoking Hutaree detention
 
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CallMeJoe

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Jul 30, 2004
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That "Free Speech Zone" is uncomfortably reminiscent of Bush Administration policies. I agree we should expect more from our government now.

As for the Hutaree militia, it would have been so much simpler if the government had just designated them Enemy Combatants and locked them away indefinitely with no access to courts and counsel...
 

Hayabusa Rider

Admin Emeritus & Elite Member
Jan 26, 2000
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As for the Hutaree militia, it would have been so much simpler if the government had just designated them Enemy Combatants and locked them away indefinitely with no access to courts and counsel...

You don't even need more than an accusation that way. It was a very long time indeed before Bush's policies allowed judges to rule. Goose meet gander.
 

JSt0rm

Lifer
Sep 5, 2000
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bush was the master of the free speech zone. did you care then? nope.

Kinda sucks huh that any ground you try to stand on anyone can say bu-but bush hahahah. You guys will never live that epic fail down.
 

PJABBER

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Feb 8, 2001
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bush was the master of the free speech zone. did you care then? nope.

Kinda sucks huh that any ground you try to stand on anyone can say bu-but bush hahahah. You guys will never live that epic fail down.

I believe Monterey is a community dominated by "liberals" and "progressives," certainly not the most tolerant on the political spectrum.

How about if you provide some reputable third party links that President Bush imposed "free speech zones" to prove your point?
 

Hayabusa Rider

Admin Emeritus & Elite Member
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I believe Monterey is a community dominated by "liberals" and "progressives," certainly not the most tolerant on the political spectrum.

How about if you provide some reputable third party links that President Bush imposed "free speech zones" to prove your point?


IIRC people were often put where Bush couldn't see them protesting. Those areas were referred to as "free speech zones".
 

JSt0rm

Lifer
Sep 5, 2000
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IIRC people were often put where Bush couldn't see them protesting. Those areas were referred to as "free speech zones".

whats funny is those stories were huge and it never even touched his news outlets as he wants sources lol. Rose tinted glasses
 

Kappo

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Aug 18, 2000
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So, you are blaming even the things that your own party does on Bush now?

Typical lib defense : "Nuh, uh, YOU! HEEE STAAAAARTTTTEDDDD ITTTTT!"
 

JSt0rm

Lifer
Sep 5, 2000
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So, you are blaming even the things that your own party does on Bush now?

Typical lib defense : "Nuh, uh, YOU! HEEE STAAAAARTTTTEDDDD ITTTTT!"

I'm just saying its funny to see dudes like you cry now.
 

PJABBER

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Feb 8, 2001
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IIRC people were often put where Bush couldn't see them protesting. Those areas were referred to as "free speech zones".

I was working outside the U.S. for most of the two Bush Administrations so please excuse my lack of familiarity with the issue.

When you say people were put, do you mean that the Secret Service delineated stand-off zones and demonstrators were limited to those areas?

I am by the White House frequently and if Obama is going to Blair House, for example, you can't get near him. In fact they sometimes put up large screens to visually shield him.

Update - OK, I looked up the term, so I do find that these are security designated zones used for events like the Democratic National Conventions, as well as when the President is making an appearance.

Looks like they were started because of the violence of left wing demonstrations in the 60's and 70's and they remain common on university grounds as well as places with large "progressive" populations that are likely to conduct violent demonstrations. I guess this includes Monterey.

From what I read, both the threat and the actual violence of the Left in the Bush terms resulted in an expansion of the use of these designated areas.

Hehehe, I'm not a violent protester so I've not had any call to visit these "official" areas. Yet... :awe:
 
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Hayabusa Rider

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So, you are blaming even the things that your own party does on Bush now?

Typical lib defense : "Nuh, uh, YOU! HEEE STAAAAARTTTTEDDDD ITTTTT!"


A few years ago I said to the Reps who were gleeful over locking up US citizens without charges, legal recourse or even judicial review that this could come back to bite them in the ass. They were thrilled that protesters were put in a box at the time.

Virtually everything which is complained about was loved then. The difference is that the shoe is on the other foot.

There is a saying about hens coming home to roost. This is that adage in practice.

Please don't start complaining now if you weren't then.
 

Hayabusa Rider

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From what I read, both the threat and the actual violence of the Left in the Bush terms resulted in an expansion of the use of these designated areas.

At the time there was no reason to believe that there was a greater threat than in the recent historical past.

I understand the need for security, however from what I can determine the reaction was greater than the threat. Note that I'm not a particular fan of the Dems or many of their agendas.

Then again I'm not thrilled with violations of the Constitution seen from the last administration either, tortured justifications not withstanding.

If something cannot past a common sense interpretation of Constitutional principles I don't care which party or ideology supports it. I won't buy it.
 

Lemon law

Lifer
Nov 6, 2005
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Personally, I think its a very complex free speech question complicated by the likely probability that the law enforcement had inside information of some form that the group was plotting illegal violence.

And if the latter is correct, law enforcement would be irresponsible not to arrest them before they actually carried out real crimes like murder.

But it can become a very slippery slope if the law enforcement information is incorrect, garbled, or worse yet when law enforcement is acting as agent provocateur.

But the USA has had conspiracy laws on the books for most of the history of this nation and they have been used against the "right and the left." And the subsequent prosecutions using those conspiracy laws tend to be either hushed up, or can turn into media events. As a liberal I could cite the case of the so called Chicago 7 after the 1968 democratic convention and also cite watergate, where the real charge was a conspiracy to obstruct justice. And as I understand it, the entire Waco raid was over a perjured informant and a garbled catalog number that may have implied the Branch Davidians were ordering illegal parts the might have made their AR-15 fully automatic.

But even then, this Hutaree Christian militia issue on this thread is not a free speech issue, its a can they get out on bail after being arrested issue, and either way they face criminal charges the government may or may not be able to get a jury to convict on.

And until the trial, the government would be remiss to tell the general public about all the details of a case they must put before a jury.
 
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Lemon law

Lifer
Nov 6, 2005
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I think Hababusa Rider understates What GWB&co were doing in terms of crowd control in saying, "IIRC people were often put where Bush couldn't see them protesting. Those areas were referred to as "free speech zones".

Because they were doing that and far more. Because the GOP wanted to picture GWB in front of adoring crowds, they therefore needed the general public. But their cheat was to pre screen those crowds, with only registered Republicans being permitted. And a I love the Chicago white sox T shirts permitted, but anything with a peace sign got you booted. And in some case, anyone who boo'd or made negative comments were quickly hustled out by either the cops or RNC officials. But the point being, none of the crowds getting close to the President were not already searched for weapons, so their violence potential was zero. It gets pretty bad when even clothes are not included as free speech.
 

PJABBER

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Feb 8, 2001
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If something cannot past a common sense interpretation of Constitutional principles I don't care which party or ideology supports it. I won't buy it.

I'd rather take the chance that rhetoric might escalate into something more than take the chance of institutionalizing the suppression of rhetoric in hopes of preventing escalation.

I detest the idea of designated "free speech zones," even as I now have a better idea of when, where and how they came about.

While I can definitely see the need for security to keep those most likely to conduct violence away from both targeted principals and innocent citizens, using isolated demonstration areas solely not to offend high and mighty politicians doesn't sit well with me at all.

There are always going to be people for and against whatever is the issue of the moment. Peaceful public demonstration is part and parcel of democracy as much as the right to cast ballots.

However, when the demonstrations turn ugly and infringe on others' rights to assemble peacefully, when public and private property is damaged and destroyed, when lives are deliberately put at risk, public order must be maintained.

When violent demonstrations become the norm rather than the rare exception, the responses escalate in turn. And we are left with something that all sides find distasteful until some better idea comes along.
 
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PJABBER

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Feb 8, 2001
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Why not make it a generic observation?

If this were actually true at Bush rallies, it is exactly what happens at Obama rallies. You only have to watch the crowds when the events are televised.

Everyone who is permitted to attend an Obama rally is screened to be a supporter or at least a member of a supportive group. No one is allowed to attend if they show up with an "I Luv Palin" t-shirt, for example. You will not see a single person wearing anything that is in opposition to Obama. At least at first.

People opposed to the Obama agenda do get in no matter what the screening might be and once they dare to speak out loud or take off that sweater or jacket covering up their political statement t-shirt they are hustled out by security and booed by the hostile crowd, if not always beaten to a pulp on the way out.
 

shadow9d9

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Jul 6, 2004
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I believe Monterey is a community dominated by "liberals" and "progressives," certainly not the most tolerant on the political spectrum.

How about if you provide some reputable third party links that President Bush imposed "free speech zones" to prove your point?

HAHAHA! You mean you are ignorant of the 'free speech zones" of the Bush years? LOL! What a joke you are.
 

Lemon law

Lifer
Nov 6, 2005
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OK PJABBER, I read your post in which you charge Obama is using the same pre screen the crowd tactic that GWB did.

So as a test, I tried to google the question and basically got no hits or evidence that you are correct.

But I got a pile of hits on GWB prescanning tactics including this one from fox news.

http://www.foxnews.com/story/0,2933,153720,00.html

My challenge to you is, link in something credible to prove you are correct in making your charge against Obama or your silence may be proof of your inability to show you are doing anything but shooting off your mouth.

And given how disruptive Tea baggers are at town meetings, because they simply shout down anyone, lets restrict this to the regular general public being pre-screened for political views.
 

PJABBER

Diamond Member
Feb 8, 2001
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HAHAHA! You mean you are ignorant of the 'free speech zones" of the Bush years? LOL! What a joke you are.

Can you describe in detail the laws of assembly as they might apply in Japan, Russia, Ukraine, Latvia, Lithuania, Estonia, Germany, Australia, South Africa, Columbia, Panama, Dominican Republic, Guatemala, India, Thailand, South Korea, UK, Ireland, France, Denmark, and Italy during the Bush years?

LOL! What a joke you are in my world. :awe:
 

NoStateofMind

Diamond Member
Oct 14, 2005
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The Left/right fault finders: When are we going to stop defending our positions by way of pointing fingers and just agree that both sides are just as guilty?

On topic: Basically there were some christian militia members who "spoke bad" of the government and they were rounded up and incarcerated? Charged with "Hate Speech"? I'm struggling to find a reason for the governments intrusion unless my assumption of their paranoia is correct.
 

Thump553

Lifer
Jun 2, 2000
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Once again, way too much is being read into this. I assume the Monterrey sign is in a city park somewhere. To me it harkens back to the English tradition of the soapbox in the park.

Establishing a free speech point or zone doesn't eliminate the first amendment in other locations.

Yet one more teabagger paranoia myth, like the death panels, Obama's gonna take away our precious guns, etc.
 

Lemon law

Lifer
Nov 6, 2005
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Now PJABBER asks a whole different question in asking, "Can you describe in detail the laws of assembly" Which is a constitutional right in the USA and maybe not elsewhere.

Nope does not apply to this thread question, we are talking not about spontaneous protests as many groups come together on the street and petition the government for redress of their grievances, and instead, on this thread tangent , the question is who gets the right to listen in close proximity to the current fearless leaders public speech and who does not?

But PJABBER may be correct, we can find some foreign country examples of GWB being slightly better than the lowest Turd on the list PJABBER subsequently cited.
 

PJABBER

Diamond Member
Feb 8, 2001
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OK PJABBER, I read your post in which you charge Obama is using the same pre screen the crowd tactic that GWB did.

So as a test, I tried to google the question and basically got no hits or evidence that you are correct.

Do you actually believe that anyone going to an Obama event ISN'T screened? Are you really THAT naive?

Even if just for security reasons, the Secret Service runs attendee background searches whenever possible and the Democratic operatives absolutely do the same. Grow up and come into the real world.

I am rushing this reply as I want to get in a bike ride before it gets dark, here is an event that apparently you either missed or ignored. Lots of MSM coverage of this ostensibly "open" town hall event at the time, guess you were sleeping it off.

Why were there no protesters at Obama’s New Hampshire town hall meeting? August 16, 2009

Also from the same event -

Little girl at Obama town hall has not-so-random political connections

How about,

The illustrated guide to Obamacare human props
 
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PJABBER

Diamond Member
Feb 8, 2001
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Now PJABBER asks a whole different question in asking, "Can you describe in detail the laws of assembly" Which is a constitutional right in the USA and maybe not elsewhere.

I know how hard it is for you to follow the thread discussion but I was replying not in general but specifically to shadow9d9's comment that I was somehow at fault for not knowing about "free speech zones" during the Bush years.

My reply was to point out the specific locales where I was living and working overseas for almost the entirety of that period and, while I did see how "free" speech and assembly was treated in those countries I visited and resided in, I was not around the U.S. all that much to personally be involved in any discussions on the topic at that time.

Aren't you just overjoyed that I chose to settle back in the States once I cut back my international work load?

ROTFLMAO at your inability to follow a thread discussion as short as this one is! :awe:
 

Lemon law

Lifer
Nov 6, 2005
20,984
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PJABBER cop out is giving me no answer with, "Do you actually believe that anyone going to an Obama event ISN'T screened? Are you really THAT naive?

Even if just for security reasons, the Secret Service runs attendee background searches whenever possible and the Democratic operatives absolutely do the same. Grow up and come into the real world."
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Which is no real answer at all PJABBER. Of course the damn secret service is going to screen out ANTONE likely to do violence to the President. Its their damn job after all.

Then, even by your own first link point, the protester were imminently outside, and not regulated to some zone far away.

And given the conditions of the challenge I gave, I asked you not to cite tea baggers who have a long and colorful track record of shouting down anyone, denying the larger audience of the right to at least hear what the current fearless leader has to say. And while PJABBER may attribute the lack of questions to a packed audience, while the possibility the Obama speech answered most of the audience questions, and that is why the audience did not did not ask a pile of questions.

In short, PJABBER link answer to my question not found, no evidence found that people in the audience of all political stripes not carrying totally nutty signs were not screened out.

And I will raise Pjabber another question, another facts is that Obama, in another political rally confronted and answered certain Joe the Plumber questions, right off the cuff, where was the censorship and prescreening issues then?

But when we deal with Tea baggers, its almost like we assert their right to go to a music consort, carrying a backpack, full of amplification equipment, and sing their own songs when the crowd came to listen to the real consort. Once you filter out that noise, why did not more questions result from the normal audience that comprised people of all political views?

As for your second little girl link, all politicians engage in that type of theater, but Obama audience censorship not found anywhere even close to GWB levels.

Your rebuttal is pathetic at best PJABBER.

But we are still getting way way off the original thread question of free speech and militia criminal activity, the questions of patriotism of the Hutaree Christian militia, may excite the right wing, but if they had Muslim affiliations it would be right wing terror. terror terror.

Where is that dimes worth of difference?