The American Civil Liberties Union argued that the ban violates the First Amendment’s right to free speech. The board, however, said it has to weigh that against the right to vote free of undue influence or the tension that candidate advocacy might create.

The controversy over election [...]]]> In a previous post, I discussed some recent controversies regarding electioneering near or at polling places. The Commonwealth of Virginia is the latest state to impose restrictions on what voters may wear when they go to the polls in early November. According the the AP report:

The State Board of Elections yesterday voted to ban clothing and hats as well as buttons and other paraphernalia that directly advocate the election or defeat of a specific candidate or issue.

The American Civil Liberties Union argued that the ban violates the First Amendment’s right to free speech. The board, however, said it has to weigh that against the right to vote free of undue influence or the tension that candidate advocacy might create.

The controversy over election apparel reminds me of the problems that are constantly arising in public schools regarding t-shirts and other apparel students are permitted — or not permitted — to wear during school hours and on school grounds. But there administrators and courts are at least generally guided by principles like the Tinker “disruption” standard. By contrast, the states that have imposed apparel limitations appear to take the position that simply wearing a button may “unduly influence” voters and interfere with the franchise. Considering that those at the polls are adults, and further considering that there is nothing intrusive or disruptive about merely wearing one’s support on one’s sleeve, or head, or jacket, this strikes me as overbroad. I understand the concern that polling places may become sites of political unrest if voters are allowed to actively campaign or demonstrate there. But wearing a button or sticker? In a political climate as bare-knuckled and tumultuous as ours, putative concerns regarding “undue influence” and “tension” from voter apparel seem overblown (to say the least).

The explanation for the “mistake” is that officers were simply “filling in a database,” were working for a “technology challenged” agency, and did not really consider those listed to be “terrorists.” These rather weak excuses will be of little consequence to [...]]]> Dan points out below that the NSA is dealing with a scandal relating to its surveillance activities. The NSA is not alone. The Maryland State Police have confessed error in listing 53 activists as “terrorists” in state and federal police databases. The designation occurred following months of covert surveillance of the individuals and their anti-war and anti-death penalty groups. The officers involved face no internal sanctions or other discipline, although new “guidelines” for domestic surveillance are apparently in the works.

The explanation for the “mistake” is that officers were simply “filling in a database,” were working for a “technology challenged” agency, and did not really consider those listed to be “terrorists.” These rather weak excuses will be of little consequence to those placed in the database, whose groups were infiltrated and investigated by authorities as if they were planning terrorist activity. In one sense, we have reached a point at which the label “terrorist” is so overused and even abused (e.g., in the current presidential contest) as to lose its true meaning. On the other hand, the label itself can be quite damaging — especially when it is the state doing the labeling. Designating and treating a person or group as a “terrorist” can result in significant symbolic, expressive, and other harms.

Of a more general concern is the trend toward treating political activism in this country as a form of domestic terrorism. Like Dan in the case of the NSA, I am not at all surprised by the Maryland events. Authorities now routinely prepare for and police even peaceful and lawful acts by dissenting groups as possible terrorist threats. Protesters and activists are not enemies of the state. At this point, however, there have been enough “mistakes” like those in Maryland to strongly suggest that authorities take this view. Our country does have real enemies. Spending fourteen months chasing and surveilling political activists seems like a very poor allocation of resources.

Of [...]]]> In my fortchoming book on public expression, I devote a chapter to public university and college campuses — “places of higher learning.” Historically, these places have been critical venues in terms of public politics and contention. They are, as the Supreme Court has said, “peculiarly the marketplace of ideas.” The Court has said that places of higher learning are not “enclaves immune from the sweep of the First Amendment,” and has rejected the proposition that the First Amendment applies with less force on campus than elsewhere. Insofar as public dissent, protest, and other forms of campus speech are suppressed, such a place becomes, in Justice Douglas’s words, “a useless appendage to a society which has traditionally reflected the spirit of rebellion.”

Of course, some would argue that universities do not exist to encourage or facilitate a “spirit of rebellion.” They are, after all, institutions whose primary mission is pedagogical. And rebellion, as history shows, can lead to riots and other dangerous activities. Fair enough. But in truth, as I argue in the book, we are in no danger of encouraging a “spirit of rebellion” on college and university campuses. To the contrary, our college and university campuses have increasingly become very placid and listless “appendages” in terms of the politics and contention they facilitate or allow. The chapter on “places of higher learning” explores the various limitations on campus expression across the United States (expressive zoning, permit requirements, speaker fees, etc.), most of which have simply been imported from outside campus gates without regard to the unique nature of these places.

The most recent limits on campus speech have arisen as a result of the presidential campaign. For example, University of Illinois officials notified students and faculty that a state ethics law bars all state workers from participating in political activities on campus property. According to this report, the Illinois Attorney General clarified that the restrictions do not apply to students. But the governor’s office said the ethics restriction applies to students as well as other employees, apparently without regard to the type of “political activity” or whether it will disrupt classes or otherwise affect the school’s educational mission. According to the report:

The Illinois situation is part of a “disturbing trend” likely to increase as the election nears, said Will Creeley of the Foundation for Individual Rights in Education. The Philadelphia-based group tracks academic freedom and free-speech complaints on U.S. campuses. It recently sent a letter of protest after the University of Oklahoma sent an e-mail to students, faculty and staff directing them not to use university e-mail to endorse or oppose a candidate. The Oklahoma school also barred the use of e-mail to forward political humor and commentary. The group has received complaints about bans on campaign activities at Iowa Western Community College and Fresno Pacific University in California, Creeley said.

In response to the administrators’ email, Illinois faculty and students held a political rally. But as I argue in the book, only a systematic rethinking of the First Amendment status of places of higher learning will save them from becoming “useless appendages.”

Of course, activists and lawyers are acutely aware that confusion regarding and limitations upon [...]]]> This election season, like others, will involve a variety of contests relating to political and other activity at or near polling places. Already officials in Kentucky, Pennsylvania, and Nebraska have encountered (or in some instances engendered) some confusion regarding whether voters may wear campaign paraphernalia to the polls. Various exit pollers, campaigners, and petitioners have also filed lawsuits alleging that restrictions on activity near polling places violate the First Amendment. Although much of the focus leading up to election day has been on registering voters, we should also be aware that polling places themselves are hotly contested democratic venues. Voting is not the only action at the polls.

Of course, activists and lawyers are acutely aware that confusion regarding and limitations upon the exercise of the franchise can substantially interfere with the fundamental right to vote. Indeed, particularly in close elections, allegations of voter interference, fraud, and disfranchisement are now rather routine. But these same concerns have contributed to the transformation of many polling places into politics- and speech-free zones. The substantial limits on political and press activity within these zones raise serious First Amendment concerns. There are, of course, sound reasons (i.e., ensuring access and providing for the orderly administration of elections) for imposing some limits on political campaigning near polling places. Indeed, the Supreme Court, in Burson v. Freeman (1992), upheld Tennessee’s ban on political activity within 100 feet of polling places under a strict scrutiny standard. But as Justice Stevens observed in dissent:

Campaign free zones are noteworthy for their broad, antiseptic sweep. The Tennessee zone encompasses at least 30,000 square feet around each polling place; in some States, such as Kentucky and Wisconsin, the radius of the restricted zone is 500 feet–silencing an area of over 750,000 square feet. Even under the most sanguine scenario of participatory democracy, it is difficult to imagine voter turnout so complete as to require the clearing of hundreds of thousands of square feet simply to ensure that the path to the polling place door remains open and that the curtain that protects the secrecy of the ballot box remains closed.

We must be careful, as Justice Stevens said, not to “confuse sanctity with silence.” Despite the First Amendment concerns associated with polling place limits, many states have imposed bans similar to Tennessee’s. Many have also sought to restrict press activity such as exit polling near polling venues. The media have generally been successful in challenging these restrictions. Officials seem to have over-reacted to the perceived dangers of this form of information-gathering. Although exit polling has a somewhat checkered history, including in the 2000 presidential election, there is no evidence that it generally interferes with the franchise or disrupts elections. A district judge found in one case that of the 5,090 complaints registered by Florida voters in the 2006 congressional elections, not a single one related to exit polling.

So as we go to the polls in a few weeks, let us hope that the various limits on campaigning and other “political” activity near polling places will not be used to deny anyone access to the ballot. We should also hope that petitioners and exit pollsters will have reasonable access to the voting public.

I have no particular bone to pick with Mayor Bloomberg. As far as I could tell from my stint living in Brooklyn, he did a fine job. He’s a popular mayor — today. But the hypocritical [...]]]> So Mayor Michael Bloomberg wants a third term. Unfortunately, New York voters have twice passed term limits laws. No matter. Hizzoner apparently plans to end-run the voters and have the City Council, many of whose members are also term-limited, to revise the term limits law. While detractors say the mayor should honor the term limits (he once called an effort to overturn them “disgusting”), supporters of a third Bloomberg term suggest that in this time of “crisis” the city needs his steady hand.

I have no particular bone to pick with Mayor Bloomberg. As far as I could tell from my stint living in Brooklyn, he did a fine job. He’s a popular mayor — today. But the hypocritical and self-serving nature of this decision is extraordinary. Apparently, Bloomberg believed that term limits were necessary — until he was subject to them. This was the story in April: “The mayor is absolutely not seeking a third term,” said Bloomberg spokesman Stu Loeser. Asked if the mayor would promise to leave at the end of 2009, Loeser replied, “Yes.” Then came the crash. So limits on incumbency must give way to the great financial crisis? Yes, say supporters of a third term. Only Bloomberg — and of course the rest of the term-limited officials who would benefit from the revision — can save us now.

Is it any wonder the public is cynical about its political leaders? It’s as if they think the world could not get along without them. Worse, fear has now become a common — and for many an accepted — rationale for continued governance. Just as a terrorist attack requires that we “stay the course,” so too does a financial crisis. Here’s a populist notion: Politicians should get over themselves. Instead, they are acting more and more like aging athletes. When the lights start to fade, they seek an “I’m back!” moment. True, some such comebacks have been successful. But others have failed miserably. The team generally seems to get along fine without the departed star. As for term limits themselves, there may well be sound public policy arguments on both sides of the issue. But at this point they are the law in the city. At the very least, officeholders should respect their constituents enough to allow them to decide whether twice deciding to impose incumbency restrictions was a mistake. It’s no answer that they could vote Bloomberg out — entrenched incumbency and its advantages are among the principal reasons term limits exist.

As usual, a number of survey questions related to broadcast and other media. There was substantial support for content restrictions and even some government directives with regard to media. For example, 66% of respondents said the government should require television broadcasters to allot equal time to liberal and conservative broadcasts (62% would extend that requirement to newspapers); 39% of respondents would extend the indecency regulations applied to broadcast television to cable and [...]]]> The First Amendment Center has released the results of its annual nationwide survey regarding First Amendment liberties. As usual, respondents expressed general support for free speech and other First Amendment liberties. But when asked about specific situations, the answers suggest a willingness to accept a substantial measure of governmental control.

As usual, a number of survey questions related to broadcast and other media. There was substantial support for content restrictions and even some government directives with regard to media. For example, 66% of respondents said the government should require television broadcasters to allot equal time to liberal and conservative broadcasts (62% would extend that requirement to newspapers); 39% of respondents would extend the indecency regulations applied to broadcast television to cable and satellite media; and 38% would permit government to require broadcasters to report a specified amount of “positive news” in return for licenses to operate. These numbers are relatively consistent over the past several years. One number that did creep up a bit–the number of respondents who agree with the statement “the falsifying or making up of stories in the American news media is a widespread problem” (66%).

Various other content regulations also garnered substantial support. For example, nearly a third of respondents disagreed that musicians should be allowed to sing songs with lyrics that others might find offensive; 42% responded that speakers should not be allowed to say things in public that might offend religious groups; 54% said the same thing with respect to racial groups. And 50% thought schools ought to be able to discipline students for posting (while off campus) entries on social networking sites that may be “disruptive” to school classes. These numbers, too, seem relatively consistent across time.

These, however, were not the most interesting (or disturbing) results of the survey.

What really caught my attention was the number of adult Americans surveyed who could not name a single First Amendment liberty. Four in ten respondents could not name even one of the freedoms mentioned in the text of the First Amendment — the lowest percentage in the 11-year history of this survey. I recall one particular experience that is consistent with these results. Years ago, I was listening to a radio program during which callers were challenged (with prizes at stake) first to name a freedom in the First Amendment and then to state the last name of a Simpsons character. Most of the callers in this (admittedly unscientific) sample readily identified Apu’s last name (Nahasapeemapetilon), for example, yet could not list even one First Amendment freedom.

At the risk of sounding “elitist,” that’s just appalling. I used to think that events like “Constitution Day” were somewhat gimmicky. But this and more would seem to be necessary — not to celebrate the Constitution, but to simply learn something about its basic principles. Among other fundamental problems, results like these expose high-minded principles like “consent of the governed” as somewhat farcical notions. How can you consent when you don’t know the basic rules under which you are actually being governed? Perhaps I’m making too much of the inability of 40% of respondents to simply list First Amendment freedoms. There are, after all, 27 amendments — can we really expect Americans to know what they all say? Perhaps these respondents understand their First Amendment freedoms on some other terms, or by some alternative name. I have serious doubts about the latter proposition. As to the former, which I admit was offered somewhat sarcastically, I don’t think it asks too much of the citizenry upon which so much First Amendment theory and doctrine rests to at least have the power of recall with regard to these essential liberties. So I wonder, to get back to the survey results, how many of the 40% who cannot list a single First Amendment freedom are among those who would accept, for example, outright content restrictions in public places. After all, you can hardly be expected to defend liberties you don’t even know exist.

The first example is from China. As was widely reported in the media during the run-up to and during the Olympics, some were hopeful that the awarding of the summer games would result in greater expressive and other liberties in that country. Alas, it was not to be. Superficially, there was more “breathing space” for public dissent. After all, authorities did designate three “protest zones” in Beijing. Of course, one had to apply for a permit to use these spaces. Those who applied were promptly arrested, [...]]]> Public protest and dissent have been much in the news lately — here and in many other parts of the world. I’ll highlight just two examples, with a brief comparative assessment regarding each.

The first example is from China. As was widely reported in the media during the run-up to and during the Olympics, some were hopeful that the awarding of the summer games would result in greater expressive and other liberties in that country. Alas, it was not to be. Superficially, there was more “breathing space” for public dissent. After all, authorities did designate three “protest zones” in Beijing. Of course, one had to apply for a permit to use these spaces. Those who applied were promptly arrested, based solely on their desire to protest government policies. Some putative foreign protesters were deported. In the end, not a single permit was issued. A report in today’s New York Times provides further evidence that the Olympics did not result in greater tolerance for public dissent in China. As reported, authorities recently followed a group of would-be protesters from their rural homes to the city, arrested them, and detained them (forcing some, apparently, to strip so they would not attempt to flee) before they could mount a peaceful public demonstration.

Those (like myself) who are critical of governmental efforts to repress protest and contention in this country must of course acknowledge that things are worse — sometimes, as this story suggests, far worse — in other parts of the world. Of course, we ought not to use a country like China as our civil liberties index. And there are, in fact, some interesting parallels between China’s policies and our own. Where, for example, do you suppose the Chinese authorities got the idea to designate “protest zones”? Expressive zoning has become a routine aspect of public policing in this country. As well, although the American media report with some surprise that protesters in China have to “register” with authorities and get permits to speak, protesters in this country are not generally entitled to use public forums without permission either. Some, like many college students, must indeed “register” with authorities in order to speak in certain places. Indeed, permit requirements, license fees, and a host of other bureaucratic hurdles must be cleared in most places in this country before a lawful public rally or demonstration can be held. To be sure, authorities in this country generally act in good faith, and without regard to the content of the expression, in processing permits and issuing registrations. And authorities here, again generally speaking, do not detain putative protesters without just cause and mistreat them. But that does not mean it is never done — as events at many recent public protest events in the United States, including the conventions in Denver and St. Paul, tend to show. Some of the incidents in China that seem to have captured the media’s attention involved the arrest of elderly women who attempted to engage in peaceful protest. Does anyone remember the arrest and embarrassing trial of the “Granny Peace Brigade,” a group of elderly women accused of blocking access to the Armed Forces Recruitment Center in Times Square? We are, as we should be, a far more open society in many ways — and in particular in terms of public contention and dissent — than is China. But the differences might not be quite as substantial as many would like to think.

The second example — from Thailand — after the jump.

For several weeks now, protesters In Thailand have been camping outside the prime minister’s office in an effort to bring down the ruling government. So far the situation sounds familiar. Power to the people, right? We have become accustomed to thinking of protest in this country as largely a tactic of those “poorly financed causes of little people.” But as reported, the Thai protest does not follow this model at all. This is a “top-down” protest movement. It is a protest not for more democracy, but in some sense against too much of it (although the government itself is hardly a model democracy). The interests of the rural poor, the protesters maintain, are being over-protected by the current government. It is almost impossible to fathom such a protest dynamic in this country. Of course, social and political elites have participated and at times even led protest movements in the United States. But can you imagine a protest by these and other elites complaining of the political power of rural and other poor people, and demanding greater representation of their own interests in government? Not in this democracy.

More of the Same

1. The Protest Environment. As I noted in a prior post, the spaces around the convention centers were “militarized.” This involved, among other things, physical barriers and large numbers of officers in the public places surrounding the convention sites. It is difficult to fully appreciate what this looks and feels like on the ground, absent participation in protest activities. Some participants I have spoken [...]]]> Now that the major party conventions are over, I thought I would provide a retrospective comparison of these events with their predecessors in 2004 with regard to the exercise of First Amendment liberties. Although there was much that was (disturbingly) familiar, there were some differences worth noting. Here is a brief recap:

More of the Same

1. The Protest Environment. As I noted in a prior post, the spaces around the convention centers were “militarized.” This involved, among other things, physical barriers and large numbers of officers in the public places surrounding the convention sites. It is difficult to fully appreciate what this looks and feels like on the ground, absent participation in protest activities. Some participants I have spoken to recount feeling surprised and intimidated by the presence of brigades of officers in full riot gear. The show of force is, of course, at least partially meant to maintain public order and secure large public spaces. Is it also meant to intimidate and suppress? Militarization’s effects on even lawful protest activity are, of course, very difficult to measure. But is it so implausible to believe that some number of potential protesters might be deterred from attending an event in this environment? We are very likely to see militarization tactics at future conventions and other mass events. I have heard comments to the effect that today’s relatively small number of protest participants is indicative of a lack of enthusiasm for such activity, or sincere doubts regarding its efficacy. But we ought to be mindful of the influence of this sort of intimidating, militarized environment on public displays of contention. At some point, the costs of participating may simply be too high for some.

2. Preemptive Actions. There are reports that police and other officers engaged in pre-convention raids of some protesters’ residences. This has occurred at other mass events, including summits in Washington, D.C. and the previous political conventions. The preemptive model of policing is consitent with the general transformation of public policing at mass events. Methods generally associated with combating terrorism are now being applied prior to and during public demonstrations and protests.

3. Mass Arrests/Use of Force. Hundreds of protesters and others were arrested at the conventions. Some of those arrested were engaged in unlawful behavior, for example the destruction of property. But as at prior conventions, many of those arrestred in Denver and St. Paul were released after a very short time. At the 2004 Republican National Convention in New York City, more than 1,800 protesters were arrested. Some 90% of these arrests were dismissed or adjourned in contemplation of dismissal. Of those arrested in New York, 550 were released before arraignment owing to a failure to comply with a state mandate that required arraignment within 24 hours. If the past is any guide, the vast majority arrested in Denver and St. Paul were simply in the wrong place at the wrong time. Police in Denver and, especially, St. Paul, appear to have cast very broad “security” nets on the streets. As well, as at past conventions some protesters are alleging that police unlawfully used pepper spray and other means of force to disburse crowds of demonstrators. Some civil actions against the host cities and police have already been filed.

4. Covert Surveillance. Juding from claims made by authorities in pre-convention legal challenges, agents once again engaged in extensive Web and other surveillance prior to the conventions. Whether the surveillance was of a similar scope to that performed prior to the 2004 Rebublican National Convention (18 months, global, and mostly of protesters planning lawful demonstrations and other events) may never be known — unless the information is disclosed, as it was after the 2004 Republican National Convention in New York City, as a result of discovery in future lawsuits.

5. Protest Zoning. Finally, as at the 2004 party conventions, officials designated protest or demonstration zones to restrict the movement of protesters and their access to contested audiences and sites. These zones were challenged in court. Not surprisingly, courts in Denver and St. Paul upheld the restrictions, despite acknowledging that they interfered with lawful First Amendment activity including handbilling. As I noted in my prior post, part of the courts’ reasoning was that the demonstration zones were not as repressive as those used in Boston and New York City in 2004. In the Denver case, the court held that protesters were not constitutionally entitled to be within “sight and sound” of the convention center. In essence, both courts held that demonstrators were permitted to be “close enough” to the delegates and the contested convention sites, and that there were alternative avenues of communication — the Web, the various representatives present, and other public spaces.

Despite the many similarities, however, there were some critical differences between the 2004 and 2008 conventions with regard to the exercise of First Amendment liberties.

Differences

1. Preemptive Lawsuits. In Boston and New York City in 2004, protesters were chided by courts for not challenging protest zones and other restrictions early enough such that proper relief could be ordered. Protesters in both Denver and St. Paul filed lawsuits well before the conventions, in an effort to force authorities to disclose limits on First Amendment activity at the conventions and to entice substantial numbers of participants to join their movements. Although they gained some basic information as a result of this tactic, protesters still found themselves in court just prior to the start of the conventions. Part of the dificulty with this strategy was that authorities either had not yet determined the substantive restrictions that would apply at the two sites, or were not willing to disclose restrictions on the ground that this might compromise security. In short, although protesters were wise to start the judicial process earlier, they gained very little as a result of their preemptive lawsuits.

2. Liability Insurance. In what may turn out to be a very significant “first” in terms of convention security, the Republican host committee purchased a liability policy prior to the convention. The policy covered physical and property damage up to $10 million, and also covered the legal expenses associated with any lawsuits filed by protesters and others against state, city, and county officers. Host cities for prior conventions and summits, including Seattle and D.C., have been hit with several million dollar judgments. St. Paul was not willing to take that chance. The private insurance approach will obviously save the taxpayers substantial sums should any of the lawsuits lead to damage awards. It also enabled St. Paul to give assurance to officers from outside the city that their legal expenses would be covered, thus increasing the size of the security force at the convention. But there are two potential concerns with this unique arrangement. The first, voiced by some protesters, is that insuring officers in this manner may encourage them to act more aggressively. I’m not sure about that. For one thing, the host cities would generally provide legal defenses for officers engaged in public policing activities. For another, I’m not sure many officers would make this sort of calculation in determining how to act on the ground and in the moment. The other concern, however, is that large damage awards against cities are a form of public accountability for actions by public officials. If the taxpayers are incensed by them, they can vote the bums out. That check no longer exists once the expense is shifted to a private party.

3. Arrests of Journalists. The security nets at the 2004 conventions were broad. But I do not recall them sweeping in nearly as many journalists as were arrested at the 2008 conventions, particulary the event in St. Paul. There are reports that AP reporters, camera crews, and well-known journalists like Amy Goodman were arrested in St. Paul. Journalists do not have any special First Amendment right to be in officially restricted areas. But authorities, out of respect for their constitutional and public functions, and probably to avoid adverse publicity, have generally avoided arresting them –at least without substantial cause. Some of the video accounts (and this form of evidence, as Howard Wasserman has noted, is becoming increasingly prevalent) suggest that officers acted quickly (and in some cases forcefully) to arrest journalists who were reporting as protest events transpired. I do not know whether, as some have suggested, journalists were actually targeted by police. We can only hope that their being swept into the security dragnet will not affect reporting at future events.

4. Terrorism Charges. Finally, some of the protesters in St. Paul apparently face terrorism-related charges under the Minnesota version of the federal Patriot Act. It will be interesting to see what conduct precipitated those charges. If it was nothing more than public disruption or, worse, advocacy of “anarchy,” future protesters (most of whom are now subject to surveillance) may take note of the enhanced risk of public demonstrations and contention.

As in 2004, the 2008 convention protesters confronted what I refer to in my book as the “militarization” of public space. At these critical democratic moments, [...]]]> Brian Leiter wonders why more legal bloggers, especially those of a libertarian persuasion, have not commented on the happenings outside the political conventions. In particular, Leiter highlights the arrest of Amy Goodman and other journalists. This silence is in stark contrast to the abundance of commentary regarding what transpired within the convention halls. To be fair to the blawgosphere, there has been some limited commentary on these matters. But not, as Leiter correctly notes, nearly as much as one might expect given the serious nature of the First Amendment contests that occurred outside both conventions.

As in 2004, the 2008 convention protesters confronted what I refer to in my book as the “militarization” of public space. At these critical democratic moments, officials again engaged in pre-event surveillance (overt and covert), “preemptive” raids, designation of national conventions as “National Special Security Events” (among other things, this places the Secret Service in charge of convention security), substantial shows — and in some cases uses — of force, mass arrests, and spatial restrictions on protest activity. Militarization at political conventions has historical roots in the 1960s; but it has become a unique form of repression since September 11, 2001. We shall see how the mass arrests are resolved in the courts. As for the physical restrictions on expressive activity, courts in Denver and St. Paul upheld limits on the location of protest activity as content-neutral time, place, and manner regulations. In both cases, the courts made a point of observing that the restrictions in 2008 were not as bad as those imposed on protesters in 2004 — in particular the protest cage erected in Boston. That is, of course, an extraordinarily low bar.

I plan to compare the conventions of 2004 and 2008 in terms of the exercise of First Amendment liberties in a subsequent post. I want here, however, to respond to Brian Leiter’s comment regarding the paucity of commentary on some of the “police state” tactics in Denver and St. Paul.

It may simply be the case that many people — members of the general public, public officials, and academic libertarians — have come to view militarization as invevitable and in some sense justified. Perhaps many have simply accepted the government’s claim that in order to preserve “security” for the general public at mass events like political conventions, protest activities must be curtailed (sometimes substantially so). One cannot, of course, completely discount the possibility of violence or terrorism at such events. Thus, officials must prepare for the worst case. Insofar as seemingly innocent persons like Amy Goodman are swept into the broad security net, this may be viewed by some as “collateral damage.” It is unfortunate, to be sure, but in the eyes of many probably not malicious or abusive under the circumstances (at worst, a few bad apples . . . ). So long as no attack or other violence occurs, officials in this context, as in others, seem to receive substantial credit from the public for “keeping us safe.” This is, on a much smaller scale, something like crediting the Bush Administration for keeping the general public safe from terrorist attacks — again, irrespective of the loss of liberty for some persons. In sum, it may be the case that many simply believe that the government has properly balanced liberty and security in this context.

But there is a less rational and, I fear, equally plausible reason that many people are not especially bothered or exercised by the events in Denver and St. Paul. There is a palpable sense, at least from the comments the public has posted in response to certain news accounts and videos, that the protesters essentially got what they “deserved.” Many may believe that these “troublemakers,” some small number of whom are self-professed “anarchists,” should not be publicly dissenting and trying to disrupt political conventions in the first place. Public protest, on this view, is a socially and politically useless exercise. More than this, some may well view it as “unpatriotic.” I don’t know, of course, whether it is fair to go so far as to say that the (mostly) silent masses simply do not like protesters — and thus cannot be bothered to defend their right to protest peacefully and to be free from police state tactics and violence. But there does seem to be very little, and decreasing, tolerance for their activities. Perhaps this intolerance even extends to journalists, who can highlight protesters’ messages and instances of abuse. This generally negative attitude holds not only at high-profile conventions but across a range of places and contexts. In the book, I discuss many instances of police misconduct and denial of fundamental expressive rights that received little or no attention from the media, law professors, or other commentators. These are instances in which our high First Amendment rhetoric fails to match the reality on the ground.

Perhaps to highlight an egregious case like Goodman’s may, for some, come too close to acknowledging that officials in Denver and St. Paul (as in Boston and New York in 2004) over-reacted or abused their authority in some circumstances. It may come uncomfortably close to acknowledging that none of the peaceful protesters arrested or subject to abuse at the conventions actually “had it coming.”

In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the [...]]]> First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.

In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their “message” is that God is killing American soldiers to punish the United States for “condoning” homosexuality. The protesters tend to stand — peacefully for the most part, but quite noticeably — on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like “God Hates Fags” and “Thank God for Dead Soldiers.” The protesters’ presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of “funeral protests.” The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.

One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of “robust and wide open” debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most — in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries — i.e., whether a 200- or 500-foot “buffer zone” is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.

Defending the funeral protester necessitates resort to abstract justifications for expressive rights — ones that apply regardless of the reprehensibility of the message or messenger. Protection for such speech rests upon fundamental commitments to principles like neutrality, autonomy, and self-government. This is, of course, nothing new insofar as First Amendment precedent and tradition are concerned; Nazis, racists, and terrorists have also received some First Amendment protection. For many, however, that doesn’t really make abstract support for this new group of hate-mongers any more acceptable. Further, the vulnerability of the targeted audience (although Westboro obviously seeks publicity on a much broader scale as well) makes the case especially difficult. Isn’t there something that can be done to shield mourners from this sort of public display? In this respect, the funeral protest resembles contests involving abortion clinic “sidewalk counselors,” who seek access to the more intimate space of a vulnerable audience. Restricting speech based on audience vulnerability or sensibility seems a slippery path. Even asking, as the jury was recently instructed to do in the Maryland tort suit, whether the speaker’s actions “would be highly offensive to a reasonable person,” may invite dilution of public expression based on listeners’ reactions. The First Amendment generally precludes this, even if the expression is, as here, particularly despicable. Finally, there is the difficulty in identifying any coherent message in these “protests.” Divine retribution for the nation’s sins is not a novel (or even crazy) idea; but the suggested means of retribution strikes one as only faintly related to some divinely inspired plan. (If God wanted us to see our errors, why not speak to us more directly?) In any event, incoherence of a speaker’s message is no more grounds for denying First Amendment protection than is offensiveness.

These are all well-worn justifications and responses. But they are also, as I say, somewhat unsatisfying. Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented. One of the central arguments in my book is that our public expressive topography has suffered a slow but steady erosion. The spaces we have left — including all of the sidewalks and public thoroughfares — are critical to the survival of any tangible public expressive culture. This is not an abstract concern. In this light, small contests like the ones concerning funeral protests attain a significance well beyond the speakers and their hateful message. Restricting or supressing the Westboro protesters will likely mean denying supporters the opportunity to pay last respects as well (even silently and respectfully). Well, one might say, that’s no big loss — sidewalks near cemeteries do not seem appropriate places for public expression. More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting. The abortion clinic precedents, which are now being cited in the funeral protest cases, tend to bear out that concern. No one likely would mourn the absence of the Westboro protesters. But we ought to be mindful of the loss of public space that may result from defeating (or seriously restricting) them. That, at least for me, is a more comfortable basis for granting even despicable speech like this some public breathing space.