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Free speech and privacy rights clashed with security concerns last week in oral arguments at the 11th U.S. Circuit Court of Appeals. At issue were orders by Columbus, Ga., police that all participants at an annual Fort Benning protest be scanned with metal detectors. The demonstrators object to the base’s housing of a U.S. Army training facility for Latin American soldiers, graduates of which have been accused of assassinating two women and six Jesuit priests in El Salvador in 1989. The facility is the Western Hemisphere Institute for Security Cooperation, formerly known as the School of the Americas. At the end of each year’s protest, a group of protesters cross the boundary into the base and are arrested. “That trespass alone does not justify a search for weapons,” Gerald R. Weber Jr., legal director of the Georgia American Civil Liberties Union, told a three-judge panel on Sept. 9. James C. Clark Jr., a lawyer for the city of Columbus, defended the magnetometer searches because the protest was escalating year after year to the point of becoming “almost riot-like.” In 2001, Clark said a group of anarchists who had taken part in the violent 1999 World Trade Organization protests joined the Fort Benning demonstrators. They rattled the gates at the Army base, hung from towers and bridges, erected barriers in public roads, ignited an incendiary device and attempted to set fire to a large pile of debris, Clark said. As a result of the 2001 protest, Clark said the police faced a “difficult choice” but decided the searches — with handheld wands — were necessary to protect the 12,000 demonstrators. Weber said authorities had not seized any weapons in the 13 years since the protests began. Judge Stanley F. Birch Jr. expressed serious doubts about Columbus’ position. He said he was most concerned about how the searches — constitutionally unreasonable ones, according to the ACLU — affected the free speech rights of the demonstrators in “a quintessential public forum.” “Isn’t this a chilling effect on First Amendment rights?” Birch asked. Clark disagreed, saying the searches were only a minor inconvenience to the demonstrators. But Birch suggested that given the thousands of people that had to be searched, “there’s a cumulative effect” that would thwart the demonstrators’ efforts to attend the protest. Despite Birch’s apparent sympathy for the ACLU’s argument, the outcome of the case was far from clear. Senior Judge Alfred T. Goodwin, visiting from the 9th Circuit, said nothing during the 30-minute argument. Judge Gerald B. Tjoflat, meanwhile, sounded interested in dismissing the case as moot. The case started last November, three days before the scheduled protest, when the demonstrators asked U.S. District Judge Clay D. Land to forbid the police from conducting the searches. Land denied the request on Nov. 15, the day before the protest, which went on as scheduled, including the searches. “The case was over before the demonstration took place,” Tjoflat told the ACLU’s Weber on Tuesday. As a result, Tjoflat added, “there isn’t any relief” the court could give Weber. The judge suggested Weber file a new suit alleging violations that may have taken place during the protest. Weber responded that claims for damages were still at issue in the case and that the court should decide the case because the same issue is likely to come up at this year’s protest, which is scheduled for Nov. 22 and 23. Birch seemed to agree that the case was capable of repeating itself without review, a standard by which courts can decide cases that are arguably moot. He suggested that each year the Columbus police could wait until a few days before the protest to announce they were planning on searching the demonstrators, leaving the plaintiffs no time to get a district and an appellate ruling on the merits. Weber said during the argument that his clients, the group called School of the Americas Watch, already had applied for a permit for this year’s demonstration. Clark said after the argument that Columbus police had not decided whether they would use the metal detectors at this year’s event. The case is School of Americas Watch v. Columbus, No. 0216886-CC (11th Cir. argued Sept. 9, 2003).

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