The Liberals doth protest too much, the mayor thinks

Already quite a few people in the blogsphere have noted the 11th circuit decision in Bourgeois v. Peters. The case involves the City of Columbus, Georgia seeking to scan all protesters with metal detetectors during a meeting of the School of the Americas (the wonderful Army unit whose mission it is to train death squads in the Western Hemisphere...among other things). Here's the highlight from the opinion written by Judge Tjoflat...and it really is great writing:

We also reject the notion that the Department of Homeland Security’s threat advisory level somehow justifies these searches. Although the threat level was “elevated” at the time of the protest, “[t]o date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times.” Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_ of_Homeland_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on “yellow alert” for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation’s threat advisory system would allow the restrictions of the Fourth Amendment to be circumvented too easily. Consequently, the “elevated” alert status does not aid the City’s case.

I think this pretty much slams some of the attempts by the DOJ to kinda sorta go around the courts. And it does so citing Wikipedia. I wonder if that web source is going to become the official source for common knowledge. Well the weather at the time was cloudy, with 30% chance of rain (Weather.com). Even in this case, imagine what great lengths the court would have to go through to find the information...Homeland Security documents? News archives? Director Mueller's comments that at the time we have no credible threats?

Here's the troubling part...if our nation's history is any indications, there will always be a large segment of the population more than eager to trade their civil liberties for miniscule increase in their sense of security (rational or not). I don't think that placement of the wikipedia entry is an accident. The internet's power to air opinions cannot be stressed enough (this blog's devotion to toilet humor being the prime example of that power). Unlike previous instances (following WWI, WWII, Red Scare), it is now far easier for the courts to gauge public views instead of blindly deferring to government arguments.

One of the judges on the panel was from the 9th circuit...so I wouldn't read too much into it. :)

UPDATE: Not surprisingly over at The Volokh Conspiracy both Prof. Eugene Volokh and Prof. Orin Kerr offer their takes on the Wikipedia citation described above. Naturally they do not take on as sympathetic a view of the use of the online resource as I do.