Bursey, 55, is set to go on trial today on federal charges of entering a restricted area, after he objected to going to a "free speech zone" during a visit by President Bush to the Columbia Memorial Airport in South Carolina in October 2002.
"Free speech zones" or "protest zones" are areas set aside by law enforcement during presidential visits or other major events for people who want to demonstrate. Police say the practice is needed for reasons of security and public safety.
Bursey's lawyers have subpoenaed Karl Rove, Bush's political adviser, and Attorney General John Ashcroft to testify, claiming that they can provide evidence that the White House and the Justice Department have told the Secret Service to keep anti-administration protesters away from the president.
"It is our contention and we can prove that the Secret Service is telling local authorities to keep protesters out of eyesight of the president," Bursey said. "We have three police officers testifying that the Secret Service used that word — 'eyesight.' That's quite disturbing."
Bursey, the director of the South Carolina Progressive Network, an activist coordinating group, is not alone in facing charges because of where he chose to protest. Otherwise peaceful protesters in other cities have been arrested for not being in the areas set aside for demonstrators. But so far, Bursey is the only person to face federal charges for his actions.
"That gives us the opportunity to call to question whether this is the federal policy," he said.
The heart of the issue, according to Bursey and other activists, civil liberties advocates and constitutional experts, is whether there are different policies for different people based on their message. Are people who support the president allowed to cheer him from nearby, while those who want to voice their complaints are sequestered out of sight?
"If there is a pattern of trying to keep people expressing an adverse view of the president where he and the media can't hear it, then you've got a situation where First Amendment rights are being abridged," Judge Avern Cohn of the U.S. District Court for the Eastern District of Michigan told ABCNEWS.
The American Civil Liberties Union believes there is a pattern. The group has filed suit against the Secret Service and the Department of Homeland Security as well as the city of Philadelphia and its police department on behalf of four Philadelphia-based groups, claiming that there has been a nationwide pattern of violation of Americans' right to freedom of speech by sequestering demonstrators where their message can't be heard.
Bursey was arrested by Columbia, S.C., police after he refused to go to a "protest zone," but local prosecutors decided not to press charges. Several months later, the U.S. attorney for South Carolina filed the misdemeanor charge against him.
The activist said he believes the U.S. attorney's decision is an indication of the federal government's involvement in the "protest zone" policy, but federal prosecutors deny there was any order from Washington to pursue the case.
"It was a local decision [to prosecute Bursey]. There was no other input from outside this office," said Scott Schools, a spokesman for the U.S. attorney for South Carolina.
White House and Justice Department officials did not return phone calls for comment on the subpoenas and the allegations in Bursey's lawsuit.
‘Who’s This for?’
The three police officers Bursey referred to were testifying in trials of other protesters facing charges related to "free speech zones" or "protest zones." One of those protesters was Bill Neel, a retired Pittsburgh steelworker who was arrested on Labor Day in 2002 when he refused to go into a fenced-in "protest zone" during a visit by President Bush to the city. He was carrying a sign that said, "The Bush family must truly love the poor, they've made so many of us."
Neel was charged with disorderly conduct, but after the arresting officer admitted that the 66-year-old was polite and did not resist arrest, and that his only offense was standing just outside the fenced-in zone with his sign, the judge dismissed the case.
In his statement to the court, Allegheny County Police Detective Thomas Ianachione testified that he was ordered by his department superiors and the Secret Service to keep anti-Bush demonstrators in a "protest zone" — an area enclosed by a barbed-wire-topped chainlink fence.
"I think they went a little too far," District Justice Shirley Rowe Trkula said of the police who arrested Neel. "He has the right to protest. This is America."
Another man who will likely soon be in court to try to defend his actions during a demonstration is Bill Douglas. The Kansas City, Mo., man says he is still trying to figure out what his crime was when he was arrested crossing a street recently when first lady Laura Bush was in town.
The only thing he can imagine, he said, is that it was related to the sign he was carrying, which said, "What is Bush hiding about 9-11? Stop the 9-11 coverup!"
A policeman directed him to the designated "protest zone," and he was crossing a street to head in that direction when, he said, the officer yelled at him, then tackled him and put him in handcuffs. He was arrested on charges of disorderly conduct.
When police took his mug shot, booking him on charges of disorderly conduct, they also took a photograph of his sign, he said.
"I was wondering, 'Who's this for?' " he said.
When the police officer questioning him asked him what he did for a living and he told him he was a writer, he says the officer asked him, "When I look into your writings, am I going to find anything subversive?"
Kansas City police declined to talk about the case.
The question of whether free speech really exists if it is confined to "free speech zones" is one that college students have been asking for years. In response to complaints from some students, many universities began in the early 1990s to set aside small areas on campus where groups are allowed to voice their opinions or hold demonstrations.
But many student groups — liberals and conservatives alike — say the policy sacrifices their free speech rights to the whims of political correctness and the delicate sensibilities of a few students.
In the Philadelphia case involving the establishment of "protest zones," the ACLU and the groups represented in the suit claim the delicate sensibilities being protected are those of the president and his administration — sensibilities they say should not be insulated from the opinions of the American people.
"Protecting the president from harm is a crucial responsibility of the Secret Service, but protecting the president from criticism is unconstitutional," said Witold Walczak of the Pittsburgh branch of the ACLU. "If people want to express their displeasure with his or his administration's policies, they have a right to do that.
"It's not just a matter of being close enough for him [the president] to hear, it's being close enough to the president, it's being close enough to the other people attending an invitation-only event, and it's being close enough to the media. It's one of the few occasions when a person who may not be rich or own a TV or radio station or newspaper can express their views directly to the president," Walczak added.
Police practices with regard to demonstrators have changed since 2000, according to several people who described themselves as longtime activists. Some attributed the change to the attitude of the Bush administration, but the violence that occurred in anti-globalization demonstrations in Seattle in 1999 and at protests in Philadelphia during the Republican convention in the summer of 2000 could have caused a rethinking of how protests are handled.
"I've been doing this for a long time and this is very different," said Barbara DiTullio, the political director of Citizens for Consumer Justice, a Philadelphia-based consumer-rights group that focuses on social issues. Citizens for Consumer Justice is one of the groups that have filed suit.
"I don't think it's independent at all. You have police departments talking to each other, conferring since Seattle," she said. "But you also have the Secret Service that's thoroughly involved."
Bursey, who has been active in protests since the late 1960s, agrees.
"The most noticeable change is the creation of these free speech zones," he said. "Having an area where you corral the public is not unusual. But now they let people who don't have a message close to the event. If you have a sign, you're a half mile away, around a corner and out of sight."
Officials at the Secret Service said that because of the lawsuit they could not speak with ABCNEWS for this story.
A Philadelphia police spokesman said that the department "went to a different standard" for security for the Republican convention in 2000.
"The mandate we had during the convention came from the Secret Service, the White House, that this was a national security issue," Capt. Bill Fisher said. "That being said, we went to a different standard than we had before."
But department policy is to balance people's First Amendment rights with security and public safety issues, Fisher said.
"When the president of the United States comes to town it's first a public safety thing and it's also taking into mind the public's First Amendment rights, as well as security," Fisher said. "It's not an exact science."
The ACLU complaint filed in U.S. District Court in Philadelphia lists eight instances in cities from Stockton, Calif., to Trenton, N.J., dating back to April 29, 2002, in which demonstrators protesting administration policies were allegedly forced into areas well away from where President Bush or Vice President **** Cheney would be, while supporters with signs were allowed to be much closer.
In another seven instances "everyone expressing a view" was moved away from where Bush or Cheney would be able to see them, while "people who merely observe, but publicly express no view" were allowed to remain close, the complaint said.
The government has not yet filed a response to the suit and still has a month to do so.
If the concern is to protect the president or members of his administration from physical harm, the focus on keeping protesters away is misguided, Bursey said.
"If you are looking for a threat, it's not going to be the local peaceniks, activists and grandmothers with a sign," he said.