The Myth of Open Courts

I first published this article on July 11, 2003, after a visit to the United States District Courthouse in Denver, Colorado.

Courts are scary things to many people. To others, they are a mystery. Regardless of what they represent to any one person, they are, in the final analysis, a place where the people' s business is conducted. They exist solely on taxpayer funding and user fees. Our courts belong to We the People.

Except, I guess, the United States District Court in Denver, Colorado.

It just so happened I had some business in that court yesterday as a plaintiff in a case which was on the docket. I' ve been in that courthouse before. I' ve shown my identification and submitted to security screening as a condition of entering. I 've filed paperwork and sat in on hearings in various courtrooms. I 've been present for my own hearings. I 've never been molested by the U. S. Marshals who are responsible for the security in that public building, and I' ve never been questioned on my reasons for being in the courthouse. I ve also never observed them questioning anybody else, either.

Until yesterday.

Yesterday, I was questioned by a U. S. Marshal as to the nature of my business in that public building. There was no reason for this questioning, I had created no disruption or security risk. In fact, I had entered the building in my usual manner and used the lavatory before this marshal approached me as I waited for an elevator.

"What is your business here today?" he demanded.

" I have a case I must be present for," I replied.

"What time? "

I named a time two hours in the future. He demanded to know my name, and stated that he would check the docket to make sure I was on it. He then wanted to know what I was going to do until the hearing.

" Sit in on some hearings," I responded.

"You can' t just go from courtroom to courtroom and sit in watching," he advised me.

Imagine my shock! A member of the public is not allowed to observe court proceedings? I thought our courts were open to the public in this country! So I pulled out my ace in the hole. " I' m also a member of the media," I stated.

He demanded to see my press pass. I wasn' t there in my capacity as a media representative and I didn' t have it with me. To be honest, I leave everything in my car when I have to enter secure buildings, like this Federal courthouse. Fortunately my associate, Cordley, was with me and had his press pass.

Once again he admonished us that we could not observe court proceedings. He scared me enough that I didn' t enter any courtrooms as I had planned. Instead, I went to my car and got my video camera and set up an interview outside the courthouse to document the harassment and intimidation Cordley and I had just experienced.

As we were wrapping up, a police officer drove up and got out of his cruiser. He demanded to know what we were doing. He advised us that we cannot video tape employees on the public street (there is legally no expectation of privacy on a public street!) or photograph the security mechanisms of the building (as if I could recognize them!).

This was an illegal photo taken in East Berlin in 1979

I was again shocked. The last time I was informed I could not photograph a government building or public employees on a public street was in East Berlin in 1979, long before the wall came down.

And now, in 2003 in Denver, Colorado, I am back in East Berlin under an apparent socialist regime intent upon censoring the media (especially the rogue independent media) and holding secret hearings behind closed doors.

No-man's zone East Berlin 1979

Security. Quite the buzzword. The security goons use that excuse to issue arbitrary orders that violate our well-established constitutionally protected rights secure in the knowledge that anyone who objects can be summarily ejected from the premises or arrested.

It is most amazing that the American public is not concerned about these developments. How long will it be, before we have a walled border complete with a no-man' s zone and tower guards just to keep those nasty terrorists out; yet the only ones who get shot going over that wall are those trying to escape the beneficent nanny state, the former constitutional republic known as the United States of America? Is that what it will take to generate concern? If so, it will be too little, too late.

We have plenty of history to draw on when analyzing what is happening to our rights. . .and it looks like too few have learned from it, therefore we are doomed to repeat history . . . again.

Introduction

I've spent a lot of time in courts around the country in the past twenty years. Not as a lawyer. As a political activist, or a court watcher, or sometimes a party.

When you are a political activist, it is inevitable that your activism will offend some member of the brotherhood of the bar, or some bureaucrat who objects to public scrutiny, or some elected official who feels they are public masters rather than public servants. When you offend the powers-that-be by exercising your rights or seeking reform, you will end up in court,  especially if you are any good at what you do.

I will be writing about my experiences for the past twenty years. Before that, I had never been haled into court. I was considered a law-abiding citizen.

I have always been a law-abiding citizen. The legality of my conduct has not changed over the years, except to become more law-abiding. I thought the law would protect my legal and protected conduct if I came under scrutiny for my public participation* vis-a-vis political activism.  I knew that if I was making the powers-that-be uncomfortable, they would pounce on me if I so much as jaywalked. So I made it my business to know the applicable law before I engaged in any conduct, and to act completely within the law.

I was right about the risks of jaywalking. I was wrong about the law protecting me.

I learned that the definition of law-abiding is not written in the law, and the law is not written in stone. The definition of law-abiding is in the eye of the beholder. It is written in the minds of the public servants who enforce it, with the interpretation they wish to place on it, using facts they created to support their abusive conduct. It turns out you can be convicted of jaywalking, even if you were sitting on your living room sofa twenty miles away from the scene of the crime when you allegedly did it.

What's it really like to stick your neck out for a cause? It depends on a lot of variables. The only perspective I can offer is that of a reasonably intelligent person who has little or no resources, championing an unpopular issue, against the most dysfunctional agency ever contrived by Congress, administered by and for extremely damaged people.

The most important observation I can make about trans-millenial political activism is that our government has had over two hundred years to perfect their legal  methods of short-circuiting the spirit and intent of the Bill of Rights, and they've gotten pretty good at it when they need to silence a threat to their established practices.

*Public participation is the protected right to participate in matters of public significance. This right encompasses the rights to free speech, to petition (this includes petition the court or government body) assembly,  association, press and more. It basically encompasses any lawful or constitutionally protected conduct that is intended to forward a political cause, raise public awareness or seek governmental reform.