2007-06-14
Steve Herbert
Abstract
Increasingly, the expression of dissent at major events is controlled with a territorial strategy – it is banned from some areas and confined to others. One of the more notable uses of this strategy was in Seattle in 1999 during the ministerial conference of the World Trade Organization. After widespread unrest forced the cancellation of the conference's first day of events, the City of Seattle erected what it termed a “restricted access” zone, and what its critics termed a “no protest” zone. I use the Seattle events to consider what it means for the state to zone the expression of dissent in such a fashion. I extend and complicate Mitchell's notion of a “dialectic of public space” by outlining seven different perspectives from which one can view the protest-zoning state. This multiplicative nature of the state, I suggest, provides yet more reason to be skeptical of state efforts to confine dissent. Because the state is inherently a contested object, it must remain susceptible to robust discussion of its practices.
“The Battle of Seattle” was a major international event. During the week that began on November 29, 1999, world attention focused on the city's streets, where an estimated 50,000 protesters confronted local police. The protesters wished to register dissent with the World Trade Organization, whose ministerial conference was to take place downtown. On the opening day, November 30, protesters occupied the streets, many intent on shutting down the conference. To that end, many formed human barricades to block traffic ([De Armond, 2002], [Perrine, 2001], [Smith, 2000] and [Starhawk, 2000]). Others confronted WTO delegates directly. Some engaged in property destruction and vandalism.
By its own admission, the Seattle Police Department was unprepared for the scale and disruptiveness of protest (Seattle Police Department, 2000; see also McCarthy, 2000). Insufficient staffing and preparation left them unable to implement their preferred strategy – to arrest those engaged in civil disobedience. Instead, the police aggressively sought to clear the streets with chemical irritants and rubber pellets. This intensified the protesters' resistance. The resultant conflict compelled the WTO to cancel its first day events.
The City of Seattle responded with three “emergency orders,” the last of which, Order No. 3, established a “restricted access” zone. As of December 1, and through the rest of the week, only certain individuals were allowed in the 25 blocks of the downtown core. These included WTO delegates, employees of downtown businesses, members of the press, and “all others necessary to the normal functioning of the area.” Although the order did not mention protesters, its subsequent enforcement led many to conclude that its purpose was to exclude those opposed to the WTO. The “restricted access zone” was thus arguably a “no protest zone.”
Evidence for this assertion materialized December 1, when about 180 individuals were arrested in downtown's Westlake Plaza. Many were there to protest the WTO. None were engaged in violence or property destruction. Further, many individuals were allowed in the zone, but only after removing anti-WTO messages from their person or belongings. After the “Battle of Seattle,” various plaintiffs challenged the construction and enforcement of the zone. One such challenge reached the Ninth Circuit of the United States Court of Appeals. By a 2–1 majority, a court panel concluded that Order No. 3 did not violate the First Amendment (Menotti vs. Seattle, 2005). However, the court held open the possibility that the order was applied improperly by the police, and remanded some plaintiff challenges to a lower court. Most of these cases were settled out of court, although one case went to trial, where the plaintiffs prevailed.
Framing the battle
Before Seattle, spatial restrictions on speech were hardly uncommon. As Mitchell (2003a) and others (e.g., [Lee, 2002], [Nanes, 2005], [Zick, 2006a] and [Zick, 2006b]) document, the state has often used territorial restrictions to regulate dissent. The U.S. Supreme Court, for example, has long held that speech activities can be subjected to “time, place, and manner” restrictions (see Ward v. Rock Against Racism, 1989). The Supreme Court also birthed the “public forum” doctrine, which differentiates public spaces in terms of the extent and nature of allowable speech (Perry Ed. Assn. v. Perry Local Educators' Assn, 1983). This much-critiqued doctrine ([Massey, 1999], [Post, 1987] and [Stone, 1987]) allows governments less capacity to regulate speech in “traditional” public forums, more capacity in “limited” public forums, and still more in “non-public” forums.
That a complicated jurisprudence exists around the territorial control of speech is unsurprising, given the importance of spatial tactics to social movements ([Martin and Miller, 2003], [Miller, 2000] and [Sewell, 2001]). Dissidents often occupy space, to stanch “business as usual” or to make a symbolic statement. And if protesters challenge boundaries around proscribed social activity, they threaten a core competency of the modern state – its ability to control its territory ([Giddens, 1985], [Herbert, 1997] and [Mann, 1988]). Dissidents can thereby expect a counter-response from the police ([Della Porta and Reiter, 1998] and [McPhail et al., 1998]); the state typically erects, to quote D'Arcus (2006), “boundaries of dissent.” Pitched struggles over space ensue. Courts are then asked to structure the rules that govern the state in such struggles.
Yet the current ubiquity of “free speech zones” or “protest free zones” is striking ([Nanes, 2005], [Zick, 2006a] and [Zick, 2006b]). These spatial regulations are mobilized on a large scale at such prominent events as national conventions, gatherings of international organizations, and appearances by major political figures. But they can also limit protest at such mundane locales as jails, post offices, national parks, schools, and polling locations. In some recent cases, these spatial restrictions were upheld by courts who cited the Seattle example as one to avoid (e.g., Bl(a)ck Tea Soc'y v. City of Boston, 2004).
Given the prominence of the Seattle events, the Menotti case was significant. A ruling against the City might have quelled the movement to regulate speech spatially. But the city prevailed. Ronald Gould authored the majority opinion. His first sentence read (Menotti v. Seattle, 2005, 1): “In this case we search for the proper balance between, on the one hand, the vibrant rights of free speech and assembly in an open society and, on the other hand, the needs of a city to maintain order and security.” Framed this way, the decision was about striking a balance between conflicting imperatives facing a democratic liberal state. On the one hand, a state holding itself open to public input must provide venues for dissent's expression, such as streets, sidewalks and other public spaces (Hague v. Committee for Industrial Organization, 1939). Otherwise, citizen-led democracy might wither. On the other hand, the state must channel political dissent to protect the rights of non-protesters who might occupy or traverse the same public space. When protesters restricted the mobility of WTO delegates, public order was arguably threatened, and state intervention was deemed necessary.
The Menotti majority thereby views its case as an instance of what Don Mitchell calls the “dialectic of public space.” In his words (Mitchell, 2003a, 130): “The central contradiction at the heart of public space is that it demands a certain disorder and unpredictability to function as a democratic public space, and yet democratic theory posits that a certain order and rationality are vital to the success of democratic discourse.” From this perspective, the critical judicial question is whether Seattle's zoning strategy found a proper point along the continuum between overly-constricting order and chaotic turbulence. For Gould and his fellow majority judge, Order No. 3 struck a constitutionally-acceptable balance.
It is understandable why this tension between order and potentially-disruptive dissent figures in Mitchell's penetrating analysis of protest policing. As the Menotti majority demonstrates, this is how courts often frame the question. This reflects inherent tensions within the project of liberal democracy. Liberalism emphasizes the ostensibly neutral processes through which political decision-making should transpire. This way, decisions are reached neither haphazardly nor through the brute exertion of majority will. These processes should protect the rights of all citizens. Some of these rights – to mobility, to privacy, to property – sometimes conflict with the desire of dissidents to occupy space. Yet a democratic sovereign must allow such protest, at least in some places some of the time. The “dialectic of public space” is an inescapable resulting conundrum.
Although this dialectic is compelling and consequential, it fails to capture fully what the state did in Seattle during WTO week. The contemporary state is indeed a liberal democratic one, but it is more. To more comprehensively understand its actions, one must take a more capacious approach. Here, I outline seven different ways of viewing the state that bounded speech in Seattle. One can see the state as: the institution able to exercise legitimate coercive force; a neutral administrator of public space; a sovereign open to accountability; a public institution concerned about its image; a cultural institution with internal meaning-making processes; a fractured and often inept social organization; a handmaiden to the often-hidden structures of global capitalism.
The term “views” describes variant ways of looking at the state. Some of them circulate among the polity at large, while others are confined to academic conversations. Some possess strong ideological heft, others are descriptive and analytic. For these reasons, they are not strictly analogous. However, each view represents a plausible way of understanding what the state is or is meant to be. Importantly, the plausibility of each view derives support from the realities of everyday state action. As we will see, each can help make sense of some aspect of the protest-zoning state. These different perspectives on the state overlap to various degrees; as in any such scheme, the boundaries around categories are not hermetic. Further, they are not mutually exclusive; the state typically acts in more than capacity. But these views can often conflict. Indeed, the post-WTO legal battles focused largely on which definition best characterizes the protest-zoning state.
Significantly, these different views of the state generate different views of public space: as an abstract plane over which the state's territorial control should be effectively exercised; as an extension of the police's cultural construction of competence; as a battleground for the struggle for global economic justice. Debates about the nature of the protest-zoning state are thus necessarily part of a wider politics of space, a politics insufficiently grasped by concentrating extensively on a “dialectic.” Yet to provide a more complete account of what the state does when it spatially regulates protest is also to provide a justification for arguing against contemporary tendencies to zone out speech. Given that the state is pluralistic in its manifestations and purposes, it must allow a politically-pluralist public conversation. That means ensuring places for multiple voices.
I draw upon a range of sources in charting these seven different perspectives: media accounts, “after action” reports, judicial opinions, and depositions of key actors taken as part of different legal actions.1 Together, these illustrate the multifarious nature of the protest-zoning state. Because my analysis here relies solely on the Seattle case, I unavoidably leave open the question of its generalizability. That said, it is at worst plausible to assert that the same or similar dynamics will emerge elsewhere when the state zones protest.
By definition, my analysis of the state's multiplicative nature disrupts the liberal ideal of a neutral state. Still, this ideal is useful, even as its attainment is a Sissyphean quest. It helps to hold the state accountable for its actions and for preserving a pluralist public sphere. Before demonstrating this, I show that there are, indeed, seven distinguishable ways of seeing the state that regulates protest. I start with Weber's seminal definition of the state as the institution with the power to exercise legitimate coercive force.
View of state I: as possessor of legitimate coercive force
No definition of the state possesses a greater analytic pedigree than the suggestion by Weber (1964, 154) that it be understood as the “political grouping that maintains the legitimate capacity to use force.” Further, for Weber, the modern state is territorially-bounded, and works to ensure that its boundaries are respected. Part of this attention is directed outward. This explains the emphasis that Weber and others (e.g., [Giddens, 1985], [Mann, 1988] and [Skocpol, 1985]) place upon the military and its imperative to protect a state's territorial hegemony. It also explains a focus on what Giddens (1985) terms “internal pacification” – the means by which the modern state seeks to survey and control its population (see also Dandeker, 1990).
The uniformed police are critical to these pacification processes. Indeed, an effective police force is a requisite component of a modern state (Herbert, in press). The intensification of social control enabled by the police was a landmark achievement, characterized well by Silver (1967, 13): “The growth of the police represented the penetration and continual presence of central political authority throughout daily life; the police extended through the periphery both as agent of legitimate coercion and as a personification of the values of the center.” The modern police, then, stand as the state's principal repository of coercive force (Bittner, 1974) and personify its power. As Van Maanen (1980, 298) puts it: “The officer at the street level symbolizes the presence of the Leviathan in the everyday lives of the citizenry.”
The police are agents of the state's territorial authority (Herbert, 1997). To ensure their hegemony, they must repel challenges to that authority. Political protesters who colonize a city's streets constitute such a challenge. That is how the Seattle Police Department understood those who expressed anti-WTO dissidence. According to its own “after action” report (Seattle Police Department, 2000, 1): “SPD acknowledges that, tactically, it was taught a hard lesson by a well-trained and equipped adversary.” In the ensuing conflict, they recognize, officers “fought for control of the streets.”
As the coercive arm of a state pursuing territorial hegemony, the Seattle police necessarily saw themselves in a pitched geopolitical battle with a tactically-sophisticated “adversary.” Their efforts to reclaim “control of the streets” were inevitable. To view the state from Weber's perspective thereby helps us understand why the “Battle of Seattle” was certain to be waged, and why the police would use whatever means necessary to prevail.
But there is a tension within Weber's definition of the state, between the words “legitimate” and “force.” Legitimate authority is notable for the absence of coercion ([Barker, 1990] and [Hurd, 1999]). Citizens comply with a state they perceive as legitimate. So, whenever a state exercises coercion, it implicitly recognizes its lack of legitimacy with at least part of the populace. In fact, the Seattle Police Department saw its legitimacy suffer immensely after WTO week, as I will explore below. The mechanisms the police used to reclaim the streets coercively prompted considerable outcry.
This suggests a robust politics of police legitimacy that cannot be ascertained within Weber's useful definition. We need to recognize other schemas for understanding the modern state. One of these sees the state as an ostensibly neutral administrator of the public goods and spaces for which it is responsible. This way of justifying state restrictions on speech figures prominently in discussions of the zoning of protest.
View of state II: as neutral administrator of presumptively ordered space
A liberal state should be neutral to ensure protection of civil liberties. A non-neutral, parochial state might intrude excessively into such private matters as religion and political preference. Instead, the state should enable citizens and groups to pursue the moral goods they choose. The state needs to be governed by presumably abstract laws and regulations, not its own moral code ([Buchanan, 1989], [Gardbaum, 1991] and [Kymlicka, 1990]).
For liberal theorists, it is also important for the state to follow proper procedures to help ensure a plural political conversation ([Bickford, 1996], [Bohman, 2000], [Chambers, 1996], [Habermas, 1984] and [Rawls, 1993]). In the absence of such procedures, minority voices might be drowned out. For this reason, the neutral state must ensure public order and respect everyone's rights. Without procedural order and a proper balancing of rights, one group may dominate over others. This is one endpoint of Mitchell's dialectic of public space: the need to protect rights and provide order.
From this perspective, a state that territorially regulates speech should only do so as a neutral administrator of the public spaces for which it is responsible. When the courts assess actions like Seattle's Order No. 3, they evaluate whether the state enacts this administrative role in a non-partisan fashion that provides some protection for speech and assembly. As Zick (2006a, 623) usefully summarizes it: “Throughout its development, the doctrine of place has treated the state's mapping of the expressive topography as a presumptively neutral endeavor. Forums are created objectively, based principally upon property management concerns. The time, place, and manner doctrine applies only where the state is neutral with regard to content, the presumption being that place itself has nothing to do with the substance of speech.” As an administratively-controlled public good, place is considered neutral, an abstract plane whose zoned boundaries can be fairly policed.
One key component of the state's neutrality concerns the content of the protest it polices. The state cannot crack down on dissent because of its particular message. Given this, it is unsurprising that Gould exhaustively addressed this question. He upheld Order No. 3's neutrality, in part by stressing the city's ostensive need to restore order after the chaotic events of Tuesday. He cited a Supreme Court case (Hill vs. Colorado, 2000) upholding buffer zones outside abortion clinics to justify this argument (Menotti v. Seattle, 2005, 38):
The purpose of enacting Order No. 3 had everything to do with the need to restore and maintain civic order, and nothing to do with the content of Appellant's message. As a matter of law, Order No. 3 was not a regulation of speech content, but rather was a “regulation of the places where some speech may occur” (Hill v. Colorado, 2000). Under Order No. 3, persons could not protest – in support of or against – any topic within the restricted zone…. The restricted zone established by Order No. 3 applied equally to persons of all viewpoints. That Order No. 3 predominantly affected protestors with anti-WTO views did not render it content based.
For both the Menotti and Hill majorities, regulating space is distinct from regulating content. The boundaries Order No. 3 created have no symbolic content; they form an abstract space that can be neutrally policed. These boundaries helped the police establish public order so that non-protesters could traverse streets and sidewalks. As Gould argued: “The perimeter did more than protect WTO delegates; Order No. 3 brought safety and security to the downtown area, protecting businesses, their employees, and the city's citizens as well” (Menotti v. Seattle, 2005, 53).
Certainly, the police legitimated the “restricted access” zone because they saw no other means to restore order. Said Assistant Chief Ed Joiner, the Seattle police official responsible for overseeing public order during WTO week: “The only way that I could re-establish order in the downtown area was to clear that area out and that was my intent. We had to re-establish control of the downtown area in order to protect the rights of all the people that were down there” (Joiner deposition, 2001, 31). He thought he “really had no option” but to create a perimeter around downtown. Police Chief Norm Stamper made a similar argument, noting that designated areas for protest were ignored. He said, “Not only were they not confining their demonstration activity to those areas as they had pledged, they were everywhere. They were all over the street. And then we began to see the violent and destructive behavior of the self-described anarchists as well as those who just seemed to be along for the ride” (Stamper deposition, 2001, 18).
For the police officials who erected the perimeter, and the Menotti majority that upheld its constitutionality, territorial restrictions on speech flow logically from the workings of a liberal state. To regulate the space of protest – rather than the content of speech aired in that space – is presumptively a neutral endeavor. And such regulation can be an indispensable means to create public order. In Gould's rather grand language: “No one could seriously dispute that the government has a significant interest in maintaining public order; indeed this is a core duty that the government owes its citizens” (Menotti v. Seattle, 2005, 43).
But was the City of Seattle quite so neutral in asserting it territorial authority? Indeed, one can question the court's presumption that regulating conduct through regulating space is a non-partisan endeavor. As Nanes (2005, 210) observes, the “line between regulating speech and regulating where speech occurs is not always clear” (see also [Mitchell, 2003b] and [Zick, 2006b]). Gould's dissenting colleague, Judge Richard Paez, for instance, argued that the police were hardly a neutral institution. In making this charge, police critics implicitly drew upon a third way of understanding the state – as a sovereign institution that can overstep its bounds and thus must be held accountable for its actions.
View of state III: as sovereign that much account
The preservation of civil liberties should create both literal and figurative spaces for citizens to develop and articulate their political visions. In this way, citizens stand apart from the state to assess its practices. The state is therefore not just a presumptively neutral administrator, but a sovereign whose power must be examined and constrained by an active and engaged citizenry that possesses easy access to public spaces to promulgate and debate political positions. Some citizen groups might even commandeer space for particularly symbolic statements, such as when civil rights activists sat at segregated lunch counters ([McAdam, 1982] and [Morris, 1993]) or when homeless activists sought to camp out across the street from the White House (Clark v. Community for Creative Nonviolence, 1984). As Sewell (2001, 65) summarizes it: “The meanings of places are crucially important to contentious politics both as contexts and as stakes. Sometimes the normative meanings and uses of places are themselves a significant focus of social movement activity.”
For anti-WTO protesters, Seattle's streets possessed normative meaning, as the thoroughfares along which illegitimate global traffic would be enabled. To occupy the streets was to bring the WTO to a halt, and to prompt debate about its practices. Public space is more than an abstract space that can be zoned and dispassionately policed. When the state engages in such policing, it does not do so solely as a neutral administrator; it is also a sovereign whose actions deserve questioning.
Questions certainly arose about the SPD's tactics. Much attention focused how the police wielded force in a non-discriminate fashion that shielded them from accountability. Post-WTO retrospectives by the Seattle City Council (2000) and the American Civil Liberties Union of Washington [ACLU of Washington] (2000) documented problematic police conduct. Dozens of non-protesters claimed they were victims of the police's use of pepper spray, tear gas, and rubber pellets, typically without any advance warning. When the police did arrest individuals, it was often for a charge that was inapplicable to the conduct in question. Dressed in riot gear, the officers obscured their identification. Several refused to provide their names when requested to do so. In these and other ways, the state arguably acted as a brute sovereign seeking to immunize itself from accountability. Indeed, its actions likely increased the level of unrest; through unprovoked acts of violence, the police intensified the resistance they faced (ACLU of Washington, 2000).
Others questioned the “restricted access” zone itself. Indeed, this was the central claim of the Menotti plaintiffs. They argued that Order No. 3 created an unconstitutional “no protest” zone.2 The “normal functioning” of downtown did not presumably include the peaceful exercise of First Amendment rights, at least if used to critique the WTO. The dissenting Menotti Judge Paez pointedly used the term “no protest zone” throughout his opinion to characterize what he argued was the real intent of Order No. 3. As he said (Menotti v. Seattle, 2005, 98): “City officials, police and demonstrators all used the term ‘No Protest Zone’ to refer to the area, and therefore I use that term throughout this dissenting opinion.” In terms of the zone's enforcement, Paez argued that the police did nothing to ascertain whether anyone entering downtown possessed the means to perpetrate violence. Instead, they focused on evidence that pedestrians opposed the WTO. He cited Martha Ehman, a downtown attorney, who was allowed entrance when she told police she worked in downtown. After she passed, however, police noticed the words ‘No WTO’ in adhesive tape on her backpack. She was required to remove the tape (Menotti v. Seattle, 2005, 126). Ronald Mtyjas, an architect, was told he could not pass to get to work without removing a sign on his coat that also said ‘No WTO’. Without Mtyjas's permission, another officer tore off the sign (Menotti v. Seattle, 2005, 127). Paez describes 10 other individuals who were treated similarly because they possessed signs, badges, or other written material critical of the WTO. One was arrested for distributing copies of the First Amendment.
In making this critique, Paez occupied the other endpoint of the “dialectic of public space.” He opposed his colleagues because he saw Order No. 3 as an overly restrictive suppression of the public speech necessary for democracy. He thus cast a zoning strategy as constitutionally suspicious, even if legitimated as a means to prevent violence. As he summarized it, “The proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure” (Menotti v. Seattle, 2005, 146).
As sovereign, the state must remain accountable to a public that needs ample venues for political assembly. Because the state regulates those venues (Balkin, 1990) it is imperative that state justifications for limiting speech be justified, and that a proper balance be struck against other state interests. Much of the litigation and other forms of post-WTO assessment were designed precisely to hold the state accountable. The Menotti decision disrupted this move severely. Part of the majority's logic drew upon a fourth view of the contemporary state, as an institution perpetually in the public eye. The City of Seattle's public image, as portrayed in extensive media coverage of the WTO events, deserved some protection.
View of state IV: as public institution with an image to protect
During WTO week, media organizations from around the world trained their attention on Seattle's streets, and provided ample pictures of the chaos there. As Gould summarized it (Menotti v. Seattle, 2005, 13): “The whole world witnessed the rampant violence and chaos in the streets of Seattle at the outset of the WTO meeting”. Anti-WTO protesters echoed this sentiment themselves, frequently chanting “The whole world is watching” when they confronted the police.
Those who watched understandably asked questions about how such unrest developed, and what it meant. City officials held frequent press conferences during the week to defend their tactics. These moves constituted implicit recognition of the public role the state plays, and the ongoing scrutiny it faces from media coverage (see D'Arcus, 2006). As unrest appeared on television screens across the world, the city understandably feared damage to its public image. This fear likely helped prompt Order No. 3. As Gould wrote in upholding it (Menotti v. Seattle, 2005, 87): “When a city is charged with the critically important responsibility of hosting a convention of world leaders, a setting in which the eyes of the world are on the city and our country, and our nation's reputation as well, the city must have the power to maintain civic order.” In the absence of such a response, he argued, the city might “lose its standing as a host city for international conferences” (Menotti v. Seattle, 2005, 66).
Gould also used the presence of the media to legitimate Order No. 3. In dismissing the plaintiffs' challenge that the order did not provide “ample alternatives” for expressing their message – as Supreme Court precedent requires (see Frisby v. Schultz, 1988) – he suggested that media coverage provided just such an outlet.3
This is something of a disingenuous argument, because it fails to consider how the media represented the protesters. Analysis of the coverage suggests that the political content of the protesters' message was obscured by narratives of their disruptive tactics (McFarlane & Hay, 2003; see also McCarthy, McPhail, & Smith, 1996). The opening sentences of a retrospective aired by a Seattle television station a week after the conference illustrates this form of representation (KIRO-TV, 1999). As images of property destruction, mass protest, and police force unveil, the anchorman dramatically intones:
They are unforgettable, perhaps unforgivable, images. As the world watches, demonstrators determined to disrupt the World Trade Organization smash windows, trash downtown, and clash with police. The sound of anarchy, the smell of tear gas, and the incredible sight of Seattle under siege. Four days that changed the way the world looks at Seattle, four days that changed the way we look at our city, four days that changed the way we look at world trade.
Even if the reality of world trade enters this summary, the predominant message is an incredulous questioning of how protest could put the city “under siege.” The dominant images are of vandals destroying property, a clear disparaging of the excesses of dissent.
Ironically, concern about media coverage may explain why the Seattle police did not initially mount a pre-emptive strategy. Mayor Paul Schell was worried that a highly visible police presence in the streets before the conference began would create the impression of an “armed camp” and reflect poorly on the city. In the absence of a robust police presence, Schell was left to plea to protesters as the week opened, “Be tough on the issues, but gentle on my city” (Seattle City Council, 2000, 13).
Schell likely did not consider protester actions as “gentle,” which undoubtedly helped him to sign Order No. 3. That order left the protesters less able to direct their message at their intended target, the WTO delegates. Although Gould argued that spatial proximity was not critical in an era of extensive media presence, Paez disagreed. Paez accurately noted that the media cannot be relied upon to communicate a message in accordance with a protester's intent, nor can the disembodied experience of viewing a media image substitute for co-presence in physical space.
But protesters were removed from public space, to help burnish a state image sullied by media coverage of the first day's events. In these acts of removal, the state inadvertently revealed itself as a cultural institution. Like all other social actors, police officials encode experience with collectively-constructed categories that render their own actions meaningful. As a result, challenges to the police's territorial authority were understood in particular ways, and helped to prompt the state's actions.
View of state V: as meaning-making cultural institution
When one theorizes or judicially reviews the state, one can see it as an abstract, faceless institution. And it is easy to symbolize police in their riot gear as identity-free “robo cops” (Fernandez, 2005) or “Darth Vaders” (McPhail & McCarthy, 2005). But like all other social organizations, the state is staffed with human actors who necessarily translate everyday experience into cognizable categories. They symbolize social action and render it meaningful. To understand state behavior, one must explicate these meaning-making processes and assess how they influence action.
As I show elsewhere (Herbert, 1997), the police accord great symbolic significance to their capacity to control space. Challenges to their territorial authority threaten their sense of competence, and deserve a robust response. This subcultural emphasis on the ability to control space shapes how officers view themselves and each other: “To be unable to control an area is referred to as ‘losing it’, a condition officers labor to avoid” (Herbert, 1997, 133).
Seattle police sought to recover from their inability to dictate events on Tuesday. They also apparently felt unshackled by the constraints of the law in their efforts to regain territorial hegemony. On Wednesday, the police engaged in several legally questionable acts. One of these involved mass arrests of people for protesting well outside the zone created by Order No. 3. Some of these arrests occurred when hundreds walked from a rally on the Seattle waterfront toward the downtown core. They were met by a wall of police who herded them north. The police eventually surrounded and arrested nearly 200 of them.
Sergeant Dianne Newsom, then a supervisor of the SPD's gang unit, helped form the police wall. She was deposed as part of a legal action by Sharon Borgstrom, whom Newsom arrested on First Avenue. The sergeant and her gang unit were moving north along First, helping sweep people away from the downtown core. Borgstrom was walking south to the ferry terminal. When she encountered Newsom's officers, she resisted their efforts to get her to turn around and move north. Her resistance led to her arrest. Newsom's explanations for what occurred during her deposition by Borgstrom's lawyer, John Muenster, are revealing (Newsom deposition, 2001, 33):
Muenster: And they are retreating before you advance, right?
Newsom: Most, yes.
Muenster: Most of them retreating. What are the others ones doing? Standing there or retreating or what?
Newsom: Some are standing. Some are stepping into doorways.
Muenster: Trying to get out of the way?
Newsom: And hide.
Muenster: Hide from the police line?
Newsom: Well, some people don't give us credit for being very smart.
Muenster: Are you assuming that they are trying to hide, or do you know that or are they just trying to get out of the way?
Newsom: I would assume they're hiding. Getting out of the way would be leaving.
Later in the deposition, the following exchange occurs (Newsom deposition, 2001, 39):
Muenster: So it sounds like you were arresting her for not complying with your order to go north on the sidewalk? Tell me what you're arresting her for. You decided to arrest her –
Newsom: Disobeying a direct order to disperse.
Muenster: What ordinance would that violate?
Newsom: Obstructing.
Muenster: Why would it violate the obstructing ordinance?
Newsom: She was given a legal and lawful order by a police officer to cease an activity and she didn't.
Muenster: What was legal about it, about the order to go north on the sidewalk?
Newsom: Well, if I remember, at that time it was a no-protest zone and the mayor had declared a state of emergency, and the lieutenant in the command post had given five or six orders to disperse and we were just repeating his order to disperse.
Muenster: Was this block in the no-protest zone?
Newsom: (No response.)
Muenster: Let me help you out. Isn't it true that the no-protest zone as you're going west ended at Fourth Avenue on December 1st, rather than First Avenue?
Newsom: It might have.
Muenster: At any point do you tell her what she is under arrest for?
Newsom: When I told her you could have just gone, I said now you're under arrest for failing to leave. I'm sure I didn't say failure to disperse because –
Muenster: Just failure to leave?
Newsom: Yes, it's easier.
Muenster: Disperse is more of a –
Newsom: Legal term.
From Sergeant Newsom's perspective, it appears, any challenge to her territorial authority deserves a response. Citizens who fail to move up First Avenue underestimate her intelligence; they fail to credit her for “being smart.” And anyone who insists on their right to catch a ferry questions the police's capacity to dictate the flow of action in contested space. Importantly, this police power, for Newsom, need only be tangentially related to the law. She can enforce a mayoral order well outside its bounds, she can avoid using a “legal term” to explain an arrest. In reviewing Newsom's actions during his own deposition, Newsom's chief at the time, Norm Stamper, admitted that her arrest report lacks any documentation of probable cause (Stamper deposition, 2001, 82).
Two of Sergeant Newsom's supervisors that day, Lieutenants Dan Whelan and Landy Black, were similarly ill-informed about Order No. 3 even as they deployed it to order arrests outside the zone. Said Whelan: “I know that the mayor had issued an order, and I don't recall the specifics of the order… I do not recall what the order from the mayor specifically stated, so I can not articulate the elements of any criminal act in violation of the mayor's order today now” (Whelan deposition, 2003, 30). Black's commentary was similar: “There was an emergency proclamation issued by the mayor that resembled what might be called a martial law type order basically to empower public safety agents of the City to take extraordinary actions to preserve the peace and order in the City. I never read the entire order, but that is the order that was I think put into law, if you will, or ordered by the mayor on the evening of the 30th of November, I think” (Black deposition, 2003, 30).
Whatever Black thought, he misunderstood the emergency order. It is instructive that he thought the police could exercise a “martial law type order” that enabled them to take “extraordinary actions.” That he so interpreted his powers suggests that his loyalty lay less with the law than with the police's felt need to regain a sense of competence through the reassertion of territorial control.
Evidence for this interpretation comes, as well, from the police's actions on Wednesday night. Officers pushed several dozen protesters east out of downtown in the early evening up onto Capitol Hill, a mixed residential/commercial neighborhood. Upset that the police were amassing force on their main commercial arterial, Broadway Avenue, many residents came out to express solidarity or to bear witness. Throughout the evening, the police used chemical irritants and rubber pellets to disperse a peaceful crowd, often victimizing uninvolved bystanders ([American Civil Liberties Union of Washington, 2000] and [Seattle City Council, 2000]).
The assertion that the police felt minimal legal constraint is hardly a radical one for experienced protesters. As one activist quoted by Fernandez (2005, 127) put it: “One of the things we all know in the movement is that once the protest starts, once we hit the streets, the law doesn't mean a thing. The police can do anything they want, arrest us for things we didn't do. The arrests never stick in court, but that don't mean a thing. In the streets, they can do anything.” True to that assertion, of the 631 people arrested during WTO week, only 77 were ever charged (Seattle Police Department, 2000).
The police's extra-legal actions likely derived from their organization's collective need to reassert an authority which collapsed on Tuesday. Yet, as much as the police felt empowered to assert their version of martial law, their actions caused considerable disquiet. Police legitimacy suffered. As one after action report summarized it (Seattle City Council, 2000, 17):
Persons subjected to gas or pepper spray will suffer considerable pain; anger is a fairly predictable response to such an experience. Many demonstrators may have regarded these police tactics as simply an attempt to inflict summary punishment on them because of their views. Since they were generally non-violent, and willing to be arrested, they would have had difficulty imagining a legitimate reason for the use of less-lethal force. Certainly, most demonstrators could not have understood that they were being gassed because of staffing problems.
Inadequate staffing was just one of many problems that week. To examine these shortcomings is to see the state in yet another fashion, as a fractured and sometimes quite incompetent institution. Even if state actors project an image of a grand and legally-enabled institution, theirs is an all-too-human construction that is often divided rather than unified, bungling rather than omnipotent. This is another way of understanding the protest-zoning state that operated in Seattle.
View of state VI: as complex, fractured and sometimes inept institution
Post-mortem retrospectives make clear that what transpired in Seattle can easily be understood as a (tragic) comedy of errors. The Seattle Police Department made manifold mistakes prior to and during the conference, mistakes compounded by their inability to coordinate with other governmental agencies. These fractures within the state apparatus became even more evident when post-conference assessments sought to assess what went wrong, and potentially culpable parties sought to minimize their own responsibility. Peeking behind the curtain of seeming state majesty, one sees a set of institutions riven with faultlines and all too capable of failures.
All published post-conference evaluations agree that whatever chaos erupted downtown stemmed significantly from poor police planning. Despite ample warnings that thousands of protesters would descend on the city, many of them intent on stopping the conference, the Seattle police deployed too few officers in too few locations. The police placed officers almost exclusively around particular conference venues, such as the Paramount Theater, where the opening events were scheduled, and the Seattle Convention Center. A small flying squad of officers was to invade the crowd when necessary to extract any engaged in violence. Protesters were expected to remain in designated areas. If they left those areas, then the police planned to make arrests. As Norm Stamper, Chief of Police at the time, later admitted (Stamper deposition, 2001, 21):
We also assumed, based on negotiations with protest leaders, that certain rules would be followed: that demonstrators would in fact abide by the commitments that were made during the negotiations with demonstration leaders. And that worked pretty well on Monday and it pretty much fell apart on Tuesday when protest tactics and demonstration strategies in general shifted, leaving us with an incredible, really extraordinary challenge. We didn't have enough people. We weren't able, for example, to effect the mass arrests and to accommodate the civil disobedience requests that had been made of us on Tuesday.
Said Assistant Chief Ed Joiner (Joiner deposition, 2001, 7): “I don't think we ever envisioned a situation getting to the point that it did.”
Overwhelmed and lacking adequate backup from outside agencies (Seattle City Council, 2000), the police over-reacted. Without effective communication and co-ordination (ACLU of Washington, 2000), the police began deploying chemical irritants. But they ran out of these quickly, and spent the rest of the day in sporadic skirmishes throughout downtown. Understaffed, the police could not detain those engaged in property destruction. Television cameras captured images of some smashing windows and setting fires, with no police response. As the ACLU of Washington (2000, 34) noted, the police possessed “no clear tactical picture” on Tuesday, and it showed.
Although Order No. 3 gave the police a powerful new tool to control the streets, their tactical picture remained unfocused. Importantly, street-level officers lacked guidance to determine who could enter downtown. Timothy Burgess was part of a group of citizens who crafted the Seattle City Council's assessment of WTO week. Deposed during the legal proceedings, he was asked about his investigation of the chain of command on Wednesday (Burgess deposition, 2006, 22):
Lawyer: What do you recall finding out about that issue?
Burgess: Confusion.
Lawyer: Can you elaborate on what you mean by confusion?
Burgess: We addressed this in our findings in our final report. As is often the case in situations like this, what happens at a command level with the mayor, for example, and then through the chief of police down through the ranks of the police department in a volatile environment where there's a lot of tension and anxiety, there's some incomplete communication, and we found that there was and that there were often incomplete orders given when people were ordered to disperse, that type of thing.
One officer told a Seattle Times reporter on Wednesday morning: “We're just playing it by ear” (Seattle Times, 1999, A6). Given this, it is hardly surprising that many citizens complained that enforcement was indiscriminate (ACLU of Washington, 2000).
Poor police planning manifest itself in other ways. The police did manage several arrests on Wednesday, including nearly 180 in Westlake Plaza. But the police left with dozens of protesters still gathered there, because they lacked buses and staff to actuate more arrests. It took nearly 24 h to process those who were arrested, and many of those were charged with an inapplicable offense. When the police deployed chemical irritants, according to many accounts, they provided little, if any, warning. This provided unsuspecting bystanders no opportunity to flee ([American Civil Liberties Union of Washington, 2000] and [Seattle City Council, 2000]).
The police's actions Wednesday evening in Capitol Hill contributed to fear that they sorely lacked guidance and sound judgment. According to the City Council's report assessing that night's events (Seattle City Council, 2000, 2): “Our inquiry found troubling examples of seemingly gratuitous assaults on citizens, including use of less-lethal weapons like tear gas, pepper gas, rubber bullets, and ‘beanbag guns,’ by officers who seemed motivated more by anger or fear than professional law enforcement.”
In the political and legal machinations following the WTO's conclusion, fractures within the state apparatus cracked visibly. The City Council faulted the mayor for excluding them from pre-conference planning, and criticized the police for failing to coordinate with other law enforcement agencies and with the Seattle Fire Department. The City Council also complained of a lack of cooperation from the police in providing them with information. The police faulted city codes that they argued limited their ability to gather “intelligence” on protest organizations. Rank and file officers threatened a no-confidence vote in Chief Stamper, who beat them to the punch by resigning. Mayor Schell sought to avoid responsibility for street-level dynamics by saying that he delegated authority for protest management to the police. He was held accountable by voters a year later, however, and lost his bid for re-election. For their part, the courts possessed some potential to alter police practices by critiquing their tactics. Yet the Menotti majority resisted this move (Menotti v. Seattle, 2005, 58): “Our role is not to inject ourselves into the methods of policing, and we do not do so here.” Here, the majority reinforced a longstanding judicial tradition of granting deference to the executive in its exercise of police power (Dubber, 2005).
Regardless of the sensibility of the Ninth Circuit's logic, the WTO events make plain that the ostensive majesty of the state's power shrouds a deeply-divided and too-often flawed human institution. The seemingly stolid structure of the state is rather more jerry-built than it may seem. That said, one can maintain that Seattle's territorial strategy for policing dissent did work to make yet stronger some structural forces of great power and depth. It is to this last view of the state that I now turn.
View of state VII: as handmaiden to global capitalism
The thousands of protesters who entered downtown Seattle on November 30 sought to render visible the largely-occluded practices of the World Trade Organization. They considered the WTO an undemocratic institution with tremendous power. As one protester (Lojowsky, 2000, 12) summarized it: “The World Trade Organization is the actualization of every political ac tivists' worst nightmare: an unelected, closed-door organization with the power to override national sovereignty in the name of profit.” To occupy the streets of Seattle meant to disrupt the WTO's normal functioning, and to prise open its operations to public accountability.
The protesters developed their strategies through a process that they considered deeply democratic. Although all shared the same goal – to occupy a series of intersections in downtown Seattle – the protesters created a consensual, flexible strategy to attain it. They split into various “affinity groups,” smaller clusters that used collective decision-making to decide their tactics. Representatives from each affinity group met to coordinate the overall strategy. Protesters hoped that the contrast between this mode of decision-making and the anti-democratic tendencies within the WTO would further illustrate the worthiness of their cause ([Fernandez, 2005] and [Starhawk, 2000]).
They also hoped to provide a sharp contrast to the tactics of the police. Any activist who blocks an intersection is vulnerable to police violence. Many of those who came to Seattle attended pre-conference workshops on non-violent protest tactics. To meet police violence with passive resistance, they believed, would dignify their cause further (Starhawk, 2000). Their actions would force the police to take sides, and to reveal the violent nature of the state's support for the WTO. Both the police and the WTO, they believed, would suffer a loss of legitimacy.
That is certainly how Denise Cooper, one of those arrested in Westlake Plaza, understood the state's implementation and enforcement of Order No. 3. Here she responds to a question from Ted Buck, an attorney for the City of Seattle, about her protesting downtown on Wednesday despite Order No. 3 (Cooper deposition, 2006, 62):
Buck: But you also understood at the time that it may have been a violation of your constitutional rights, but on its face, what you were doing violated that order; is that right?
Cooper: Again, my understanding when I went down there was the no-protest zone was a violation of my rights, so then I didn't see myself as committing a crime. For me personally, I think that, I felt like the city was under a lot of pressure to make sure that this meeting went well. There were a lot of people looking at Seattle. I think that they handled it badly, and so I think that this was their attempt to try and bring that all under control and to help the ministers of the WTO have a good meeting. I really do think that they were more on the side of the folks attending the meeting than they were on the folks who wanted to talk about what the meeting was about.
Gillham and Marx (2000, 214) make much the same point: “In Seattle, the focus of law enforcement was on trying to insure conditions that permitted global business to do business. Their focus was not on investigating legal and moral crimes against labor and the environment, conditions in poor countries, or questionable alliances between businesses and governments.”
Once the police were symbolically tied by dissidents to the WTO, to resist one meant to resist the other (on the interaction between police action and protest response, see [Ericson and Doyle, 1999] and [McPhail and McCarthy, 2005]). For that reason, skirmishes with the police took on tremendous significance. Lojowsky (2000, 14) describes the exhilaration his affinity group experienced when a wall of chanting protesters rebuffed a police car that tried to move through them: “Within a lifetime minute the energy raised with the high chant of non-violence had stopped the police car. Then sounded the most glorious, righteous cry of victory I have ever heard…. For that moment, and truly forever, the power of people acting in peace had won a holy victory.”
Resistance to the police, and to the criminal justice system more broadly, continued through the week. The implementation of Order No. 3, and the massive arrests on Wednesday, did help quiet downtown. Much of the dissident focus then shifted to those who were arrested. Several hundred surrounded the King County Jail Thursday, and maintained a loose vigil until most of those held were released.
In their tactics, then, the anti-WTO protesters sought to make visible what they believed to be the state's true nature, i.e., as a handmaiden to non-democratic global economic governance. They sought to make this view of the state salient to the world's population. In this way, they hoped to question the state's alleged loyalty to democracy. As they chanted many times during WTO week: “This is what democracy looks like.”
From this perspective, the state can be a hideously repressive institution. When the state erects a zone around allowable protest, it chooses sides. As Mitchell (2003b, 40) asks: “Indeed, in the end, isn't protest zoning really just a way of controlling the content of debate without really acknowledging that that is what is being done, by, for example, privileging the right of WTO ministers to meet and to speak over the right of protest groups to contest that speech?” Those who bore the state's violence when cleared from downtown Seattle would likely agree.
Conclusion
The scale and intensity of political protest in Seattle surprised and impressed dissidents and government officials alike. Protesters were galvanized by a massive display of public concern about WTO practices; police officials were underprepared and overwhelmed. Given this, the state resorted to a zoning strategy to reassert its authority. Even if the police literally arrested peaceful protest in public streets, they escaped constitutional liability by dint of the Ninth Circuit of the United States Court of Appeals.
Since Seattle, the zoning strategy is established in advance of events where protest is anticipated. Political dissidence is confined and kept at a distance. Although legitimated in the name of preserving order, this political geography of speech compels concern about vibrancy in the public sphere. If protest is marginalized spatially, it is also marginalized politically. For Zick (2006a, 653), to confine political protest to particular places can work to “mute and even suppress messages, depress participation in social and political protests, and send negative signals to those on the outside regarding those confined within.” This is an exceedingly hard concern to ignore. Any state purporting to be democratic must resist the urge to marginalize dissent in this fashion. It is thereby necessary to take Mitchell's notion of a dialectic of public space seriously; we must ensure that the desire for order does not trump the need for vibrant political expression.
Yet the dialectical approach provides an incomplete understanding of the politics of the protest-zoning state. These politics can only be fully grasped, and more effectively contested, by outlining a yet wider range of perspectives one can plausibly adopt to understand what impels tactics like Seattle's Order No. 3. The state acts for varying reasons, and its actions can be plausibly interpreted from varying perspectives. Further, these differing perspectives often rest on differing geographic imaginations, on variant ways of envisioning the space of protest. To debate the nature of the protest-zoning state is thus simultaneously to debate the nature of public space.
This multiplicative nature of the state reinforces the need to ensure that its actors are held accountable. Because robust debate about the state's nature is inevitable and inescapable, better to ensure multiple venues in which such debate can transpire. Public streets and sidewalks thus need to only rarely be subjected to impromptu zoning to confine and marginalize dissent.4
To explicate the manifold perspectives on the state necessarily refutes assertions that the state can ever be neutral. As Zick (2006a) points out, zones around speech are created and enforced by the police, who dislike disruption. Further, these zones impute a bias against protesters. More simply, as Mitchell (2003a, 73) says: “Neither law nor public space is neutral or immutable.” That said, it would be a mistake to dismiss the value of a neutral state. This ideal – even if ultimately unattainable – does provide an important standard against which to measure the state's reaction to protest. If the Seattle police suffered any blows to their legitimacy through their (over)reactions to anti-WTO dissent, it was precisely because they acted to suppress one political view. They also extended their violence beyond what the law proscribed. Indeed, this is the point of non-violent resistance: when it prompts the state to perpetrate violence, it shatters the ideal of a neutral state, and thereby opens a political space for questioning larger social forces.
Of course, even if the state embraces neutrality, it simply pursues a negative right; it merely observes limits on what it can do instead of taking more affirmative action to ensure venues for dissent's expression. My analysis suggests such a need exists. Precisely because the state can be different things to different people, it must ensure that it is susceptible to discussion about which view should hold sway. The state is ambiguous; it is driven toward multiple goals, susceptible to multiple interpretations. These can overlay one another, but they can conflict. Because of this inescapable conflict, the state needs both to resist the easy move to contain protest spatially and to make sure that multiple places can host multiple political discourses.
Acknowledgments
Research support for this article was provided by the Simpson Center for the Humanities at the University of Washington. I thank Katherine Beckett, Gail Stygall, and Timothy Zick for their helpful and encouraging remarks along the way, and the anonymous referees for their constructive commentary.
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Tel.: +1 206 685 2621; fax: +1 206 543 3313.
1 These depositions were acquired from a plaintiff's attorney, and are on file with the author.
2 The term “no protest zone” may actually have originated from the police themselves. Assistant Chief Ed Joiner used the phrase at a news conference on Wednesday morning announcing the new strategy (De Armond, 2002). Many citizens in downtown Seattle on Wednesday reported that the police used the term “no protest zone” frequently (ACLU of Washington, 2000).
3 Similar logic was used by the Second Circuit of the U.S. Court of Appeals to legitimate the confinement of protesters to a fortified pen during the Democratic National Convention in 2004. See Bl(a)ck Tea Soc'y v. City of Boston, 2004.
4 What renders this even more important is the difficulty of holding the police accountable for their actions after the fact ([Herbert, 2006] and [Walker, 2001]). In the case of the WTO, the Seattle Police Department did not punish a single officer for actions taken during the conference.