CFIF General Counsel Renee Giachino is inside the gates of the Augusta National Golf Club this week during the historic Masters tournament to support the private club's First Amendment rights to choose its membership, despite pressure from special interest groups attempting to exploit the prominence of The Masters.� Throughout the hallowed greens, talk is about golf and, much to the likely chagrin of Martha Burk, not about her campaign of misplaced priorities.� Except for the incessant carping by The New York Times and a few others, in Augusta, the real story is who will be fitted with the winner's green jacket on Sunday.
More interesting, even outside the gates of Augusta National it appears to be tournament week as usual.� With Martha Burk not scheduled to drop into Georgia until Thursday for a (surprise, surprise) press conference from Atlanta (not Augusta), her purportedly hundreds of supporters appear not to have arrived yet either.� In fact, the only commotion occurring outside the gates is from anti-Burk protestors, some of whom are busily selling "Pro-Hootie" hats and other paraphernalia.
Admittedly, Augusta's environs may change radically when Saturday arrives -- the third day of the tournament and Burk's requested day of public protests.� How much real sentiment will change remains to be seen.� Word on the street is that Burk hired a professional protest organizer to assist her in getting enough people interested in her sideshow to ride the buses to Augusta from Washington, D.C., and Atlanta.� Odds are better on predicting who will win the tournament than on how many supporters Burk can actually mobilize.
One certainty is that Burk, et al., cannot legally protest right outside the gates of Augusta National.� In two opinions issued Monday within hours of each other, Chief Judge Dudley Bowen of the United States District Court for the Southern District of Georgia, a Carter appointee, ruled against Burk's legal challenge to the local sheriff's denial of a permit for the specific requested sites.
In the first opinion, dealing with the "facial challenge" to the ordinance, Judge Bowen concludes that the ordinance is a content-neutral time, place and manner restriction modeled after a Chicago Park District ordinance which passed constitutional muster last year in a case decided by the U.S. Supreme Court.�
Judge Bowen recognized that "the interests of the parties are irreconcilable in this case" because "Plaintiffs assert that the First Amendment protects their right to protest in the specific area of their choosing" while the "Defendants have an interest in protecting the protest participants, ensuring the safety of bystanders, maintaining an orderly flow of pedestrian and vehicular traffic, and preventing disruptive confrontations."� He then went on to remind Burk that our "'our civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost . . . .'"
In the second opinion, concerning Burk's "as-applied challenge," Judge Bowen ruled that the ordinance was applied to Plaintiffs in a constitutional manner.� In what will be an extremely difficult decision to dispute from a factual standpoint, Judge Bowen goes to great lengths to describe in detail the stretch of Washington Road where Plaintiffs want to protest.� At the southern part of Burk's requested protest site, just outside the gates of Augusta, there is no dedicated paved sidewalk but rather merely a grassy band of public property from five to seven feet wide.�
Across the street, the site of Burk's second request where she proposed to put up barricades, is the busy side street of Magnolia Drive.� In upholding the sheriff's decision to deny a permit for that location, Judge Bowen noted "[t]he effective blocking of the thoroughfare for the virtual entirety of one of four tournament days would result in an unreasonable and undue arrogation of Plaintiff's First Amendment rights, exalting them far above the rights of motorists, pedestrians, and property owners who have an expectation of the orderly flow of traffic in and out of Magnolia Drive and of the benefits of which might accrue therefrom."
Concluding "without a doubt that the reasons articulated by the Sheriff are grounded in legitimate concerns for public safety," Judge Bowen pointedly noted that the available alternate site for protests, about 4/10 of a mile from the requested site and remarkably owned by Augusta National, is highly visible and should be even more acceptable to Burk if she was truthful when she stated that her target audience was the members and tournament players.�
Perhaps calling Burk's media-oriented bluff, Judge Bowen stated that "[t]his group must arrive by way of Washington Road.� If, as most of them probably will, they arrive by automobile from the westbound lanes of Washington Road, they will see the protestors at the alternate site if they choose to look.� On the other hand, if Plaintiff's original chosen site were permitted, the target audience arriving from the East would turn from the southernmost west bound lane into Gate 2, leaving unseen the crowd of protestors behind a barricade blocking Magnolia Drive almost one hundred feet away."
Burk filed an emergency appeal with the U.S. Court of Appeals for the 11th Circuit on Wednesday that was rejected in the early morning hours of Thursday, just hours before the first tee time at golf's biggest event.� She has hinted that she may encourage groups of four or fewer (thereby not needing a permit) to protest outside the gates. That's a smart tactic for someone undoubtedly worried about being able to draw a crowd at all.
The prophetic question from Augusta is whether you have a circus if only one clown exits the funny car.