Fencing freedom in
One advantage of lifetime tenure is that federal judges are under no obligation to subscribe to the political fiction that life's choices fall neatly into categories of good and evil, right and wrong.
Last week, US District Judge Douglas P. Woodlock captured, as no presidential candidate will this pandering season, the nation's deep ambivalence about how to balance security and liberty in an age of terror. The 57-year-old jurist summed it up tidily and regretfully, describing the city's fetid formula for protecting the safety of delegates to the Democratic National Convention and preserving the speech rights of protesters as both necessary and "irretrievably sad."
You can argue with Woodlock's conclusion that large-scale dissent, by definition, poses a threat to public safety. Why the conduct of antiglobalization activists in Seattle is predictive of the behavior of antiwar demonstrators in Boston eludes me. Why federal authorities will not disclose the clear and present danger they say some protesters pose troubles me. But there was, in the judge's courtroom comments the other day, a refreshing lack of certitude, the likes of which we are unlikely to hear this week from either the FleetCenter stage or the protest pen.
"One cannot conceive of what other elements you would put in a place to make a space more of an affront to the idea of free expression than the designated demonstration zone," Woodlock conceded, even as he upheld the legality of confining thousands of people in a cage behind chain-link fencing, wire mesh, and concrete barriers, under an abandoned track lined with razor wire.
Woodlock's ruling is itself an affront to those who look to the courts to check the power of government, especially in the most challenging times when capitulation is the easier course. But even a critic could not hear his remarks without grudging respect for the uncommon candor with which the judge described his own struggle in denying the protesters' request for injunctive relief.
"One of those questions that's always asked law students is 'how do you define the law?' And one, I think, fair definition of an answer is 'it's the tolerable accommodation of incommensurables, competing interests that can't always be adjusted fully.' And, so, what you try to find is a tolerable accommodation," he said.
Woodlock, whose Andover-Yale-Georgetown Law pedigree nearly mirrors that of the men who would be president, was mindful of the contradiction inherent in his decision to sanction a veritable internment camp for aggrieved citizens. "Expression is supposed to be robust, wide open, and uninhibited, and it should be," said the former reporter, who once covered the US Supreme Court for the Chicago Sun-Times. "But it cannot properly involve assaults and batteries, the spreading of liquids on the people who are closest. And experience, as I have said, indicates that that's likely the case."
For those of us who remain unconvinced that violence and dissent are inextricably bound, Woodlock's ruling is a triumph of fear over freedom. But the judge's pained compromise of civil liberty was more sincere than the Democratic ticket's cheap embrace. "John Kerry and John Edwards understand that terrorists do not just target our way of life," read a press release issued the same day as Woodlock's ruling. "A Kerry-Edwards administration will be on guard not to sacrifice the freedom we are fighting to protect. A Kerry-Edwards administration will believe in an America where freedom is what we fight for -- not what we give up."
It was a curious attempt at reassurance, coming the same week that the Boston transit system became the first in the nation to conduct random searches of passengers. The same week that the city slapped a fine on a pizza maker for flying a banner in support of President George W. Bush on his shop across from the FleetCenter. The same week that a misguided, if well-intentioned, judge approved an open-air holding cell for those intent on expressing opinions not cleared by the Democratic platform committee.
Eileen McNamara is a Globe columnist. She can be reached at mcnamara@globe.com.
