Author Archive for timothy-zick
The First Amendment’s Trans-Border Dimension
posted by Timothy Zick
My book, The Cosmopolitan First Amendment, will propose that we have not one, but three, First Amendments. The intra-territorial First Amendment is the most familiar of these. It encompasses expressive and religious activities that occur within the territorial borders of the U.S. The territorial First Amendment’s domain encompasses expressive and religious activities that intersect with the nation’s territorial borders. Finally, the extra-territorial First Amendment operates beyond our shores.
My project focuses on the latter two — territorial and extra-territorial — First Amendments. This is the First Amendment’s trans-border dimension. In this post, I want to highlight some of the activities and issues that are implicated in a study of this dimension.
Within the trans-border dimension, U.S. citizens cross international borders for purposes of information-gathering, protest, or missionary work; publish communications and information while in foreign lands; communicate and associate with aliens, including foreign leaders, who are located abroad; and seek access to materials and information distributed abroad (including national propaganda). U.S. officials seek to regulate these and other trans-border activities, engage in extensive communications of their own in foreign lands and forums, and fund sectarian projects abroad. As well, as they long have, state and local governments continue to play some role in foreign affairs and foreign relations forums and dialogues.
Aliens are also present and active in the First Amendment’s trans-border dimension. They seek entry to the United States for purposes of academic, artistic, and other forms of exchange; may wish to contribute resources to and participate in American political campaigns; are subject to U.S. spending conditions while communicating abroad; attempt to have foreign libel and other judgments enforced in U.S. courts; and distribute information across international borders that could be harmful to American interests at home and abroad. Moreover, foreign regimes (courts and other government institutions) are pressing to have their own laws applied to domestic speech and other activities by U.S. citizens. Multi-jurisdictional speech conflicts have become more frequent as speech has migrated to the Web.
There are a number of unanswered or, at least to my mind, inadequately resolved First Amendment issues in this dimension. Read the rest of this post »
September 8, 2011 at 11:00 am
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New Faces of the First Amendment: The Philosopher, the Pastor, and the Publisher
posted by Timothy Zick
My new book project focuses on the First Amendment’s trans-border dimension. I’ll explain in more precise terms what this dimension includes in a subsequent post. Briefly, I will be examining and hope to clarify the relationship or intersection between First Amedment liberties and territorial borders.
To be sure, in years to come domestic or intra-territorial First Amendment issues will continue to be prominently debated and litigated. But owing to globalization, digitization, and other twenty-first century phenomena, we will be forced to pay greater attention to trans-border First Amendment concerns. One way to demonstrate the change in focus is to think about some of the contemporary figures or personalities whose expressive activities implicate the First Amendment’s trans-border dimension. Three contemporary First Amendment figures – a Swiss philosopher, a Florida pastor, and an Australian Internet publisher –symbolize and demonstrate some of the emerging complexities of trans-border expression. Read the rest of this post »
September 6, 2011 at 9:23 am
Posted in: First Amendment
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The Summer of Discontent: Creative Repertoires of Public Protest
posted by Timothy Zick
Thanks to Danielle and the full-timers here at Concurring Opinions for inviting me for another visit. As Danielle’s introduction indicated, my recent publications have focused primarily on freedom of speech. I want to use part of my guest stint to discuss some of the subjects of my second book, tenatively entitled The Cosmopolitan First Amendment. But I thought I would start with a post related to the subject of my first book, Speech Out of Doors.
Across the globe, it has been an active and tumultuous summer of protests. Public protests in Tunisia, Syria, and Belarus have been most publicized. In Belarus, citizens demonstrated their creativity in the face of official crackdowns, first by engaging in clapping protests and then, when those were met with repressive measures (including imprisonment), synchronized cellphone ringing or buzzing. The New York Times reported on the diversity of worldwide public demonstrations during the crackdown in Belarus:
Russia has the “blue buckets,” activists who affix plastic sand toys to their cars (or their heads) in a protest against the traffic privileges accorded to government officials, whose cars are equipped with flashing blue lights. In Azerbaijan, where protesters are hustled away so quickly that even gathering is nearly impossible, small flash mobs have appeared out of nowhere to perform sword fights or folk dances.
The more permissive political atmosphere of Ukraine has spawned Femen, a group of young women who address such nonsexy issues as pension reform by baring their breasts in public. A woman was arrested in April for walking up to a World War II memorial in Kiev, Ukraine’s capital, and frying eggs and sausages over the eternal flame.
These and other reports prompted me to think about the most creative forms of public contention. The man pictured above is Ahn Sang-gyu, a/k/a The Bee Man. Ahn, a bee farmer, covered himself with 187,000 bees to protest Japan’s territorial claim to the Korean-occupied Liancourt Rocks. The 187,000 bees apparently represent the 187,000 square meter dimensions of these islets. As it turns out (and this was news to me), South Koreans are among the most creative when it comes to demonstrating public discontent with official policies. No mere marchers or chanters are they. For example, as this photo array shows (warning: some graphic images), South Koreans have been known to drop trou in the street, eat the flags of rival nations, dismember pigs, chop off their own fingers, and behead dummies. But the South Koreans have global competition in this regard. Read the rest of this post »
September 2, 2011 at 10:25 am
Tags: contention, protest, speech
Posted in: Civil Rights, First Amendment
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Pole Dancing Reprise/Reprieve
posted by Timothy Zick
I’ve greatly enjoyed my return visit to Concurring Opinions. As I depart, I can report that the right to instruct others in the art of pole dancing, which was the subject of my first post, has recently been vindicated. As reported here, the officials who originally denied a part-time dance instructor an occupancy permit that would have allowed her to teach pole dancing classes in a suburban strip mall outside Pittsburgh have relented. Authorities were apparently concerned that the strip mall business might turn into a strip club, or a sex toys outlet, or some other type of bawdy concern. Satisfied that this will not be the case, the town officials agreed to grant the permit. The instructor looks forward to helping women “release their inner goddess[es].”
October 17, 2008 at 9:45 am
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Election Apparel and the Fashion Police
posted by Timothy Zick
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).
October 15, 2008 at 2:20 pm
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Activism and Terrorism
posted by Timothy Zick
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.
October 9, 2008 at 12:35 pm
Posted in: Civil Rights
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The University Campus as “Useless Appendage”
posted by Timothy Zick
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.”
October 6, 2008 at 5:35 pm
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The Sanctity of Polling Places
posted by Timothy Zick
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.
October 2, 2008 at 2:24 pm
Posted in: Civil Rights, Constitutional Law, First Amendment
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The Crash and a Third Bloomberg Term
posted by Timothy Zick
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.
September 30, 2008 at 5:06 pm
Posted in: Politics
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The State of the First Amendment
posted by Timothy Zick
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.
September 29, 2008 at 3:58 pm
Posted in: First Amendment
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The Fleeting Expletives Case
posted by Timothy Zick
In preparation for a Supreme Court Preview event here at William & Mary, I’ve been reading the briefs in FCC v. Fox, the so-called “fleeting expletives” case. I am to serve as one of the “justices” at our simulated oral argument (the Supreme Court will hear argument on November 4), in which Erwin Chemerinsky and Tom Goldstein will be advocates. The case is presented to the Court as a run mine administrative law case. For those not familiar with the case, it involves review of the FCC’s decision in 2004 to sanction broadcast of even isolated or inadvertent (“fleeting”) expletives. The policy change seems to have been animated by fleeting utterances of variations of the words “fuck” and “shit” by Bono, Cher, Nicole Richie, and a host of “shock jocks.” At the risk of having myself recused, I want to briefly address what Fox refers to in its merits brief as “the 800 pound gorilla in the corner of the room” — whether the FCC’s indecency regime comports with the First Amendment.
In its “contextual” enforcement since the change of policy, the FCC has held that the use of expletives in Saving Private Ryan and on a morning news program were not indecent, while the use of expletives in a documentary on the blues was sanctionable. In any other context, of course, this sort of regime would raise serious and likely fatal First Amendment problems. That it does (or may) not in the broadcast context is owing to the Court’s decision in FCC v. Pacifica Foundation (1976), which narrowly permitted the FCC to move the “verbal shock treatment” of the Carlin “Filthy Words” monologue and other “indecent” expression into a “safe harbor” (10 p.m. to 6 a.m.) when children would be less likely to be listening and watching. If the First Amendment is the “800-pound gorilla,” Pacifica is the elephant in the room in the pending case. Its limited grant of authority to the FCC was largely premised on (1) the “uniquely pervasive presence” of broadcast media and (2) the fact that broadcast content was “uniquely accessible to children.” But today neither of these premises seems factually correct. Cable, Internet, and other media are as or likely more “pervasive” than broadcast, and all are accessible to children. In addition, technologies like the V-Chip would seem to offer less restrictive alternatives to the expansive indecency regime now used by the FCC. Finally, as Fox notes, several decisions subsequent to Pacifica have invalidated indecency standards very similar to the one enforced by the FCC. For these and other reasons, in the final portion of its brief Fox argues that the FCC’s present indecency regime violates the First Amendment.
I think there is some merit to Fox’s arguments, although the Court need not and likely will not go this far in the pending case should it decide to reject the FCC’s policy change. But is it time to go even further, and overrule Pacifica? I’ve always had some trouble accepting the Court’s rationale in Pacifica, including the notion that the broadcast of certain words is akin to an unavoidable “assault.” But at this point the decision seems like a glaring anachronism. I admit that in a world slathered with so many forms of indecency, there is an argument for preserving at least this one safe haven or zone of decency. And I have no sympathy for the networks if, as some suspect, their challenge is based on a perceived competitive disadvantage with cable in the race to the cultural bottom. But would broadcast really devolve into an expletive free-for-all if the FCC stopped policing for “indecent” words? (It didn’t in the decades leading up to the FCC’s policy change.) With so many communication/entertainment options and filtering technologies available, is occasionally indecent language on broadcast stations still a substantial concern? To how many people? (Nearly all of the 234 complaints in the Bono incident were mass-generated by a single group.) In the end, I’m just not sure that the FCC’s regime, including its most recent regulatory “swear jar” approach, is worth the candle. I wonder what others, particularly parents, think.
[Update: According to a recent survey, 39% would extend indecency restrictions currently applicable to cable and satellite television.]
September 26, 2008 at 10:48 am
Posted in: First Amendment
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The Press and Preemptive Arrests
posted by Timothy Zick
As this report indicates, police are dropping charges against several journalists arrested during the Republican National Convention in St. Paul. The mayor pats himself and the city on the back for “protecting” and “promoting” press liberties. To the contrary, as I noted in a prior post, pressing and subsequently dismissing charges has become a critical aspect of public policing at mass demonstrations and rallies. The tactic has also been used at various presidential events in recent years. The tactic appears to be to arrest now and sort the charges later — a sort of preemptive strike used to control mass contention. The fact that so many press members were caught in the net this time highlights a distinct harm from this pernicious strategy. It is bad enough that many — in some cases hundreds — of protesters are processed in this fashion. To interfere with the function of the press in this manner deprives us of instantaneous access to information of public concern. At least the city plans to use a broad definition of “the press” in determining which charges to drop. It’s unfortunate that they did not exercise more care in pressing the charges in the first place.
September 22, 2008 at 11:40 am
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Meatspaces, Cyberspaces, and (Relative) Expressive Freedom
posted by Timothy Zick
From time to time I see commentary suggesting that expression might actually be less free, or may become less free, in cyberspaces than it is in traditional physical or “meat” spaces. Consider, for example, the opening of this AP story: “Rant all you want in a public park. A police officer generally won’t eject you for your remarks alone, however unpopular or provocative. Say it on the Internet, and you’ll find that free speech and other constitutional rights are anything but guaranteed.” I was reminded of this issue recently when I saw that YouTube’s guidelines apparently now include a ban on terrorism-training videos. This newest addition to the “content bans” already in place on this and countless other sites prompted me to consider whether the concern that speech might actually be less free on the Web than in the streets and other physical places might have some merit.
The problem, of course, is that there is no way to accurately measure “relative liberty” in our physical and virtual realms. But we can make some very general observations.
September 18, 2008 at 11:45 am
Posted in: First Amendment
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Freedom of Expression Elsewhere
posted by Timothy Zick
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.
September 12, 2008 at 2:24 pm
Posted in: First Amendment
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The Political Conventions and the First Amendment
posted by Timothy Zick
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.
September 10, 2008 at 4:00 pm
Posted in: First Amendment
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The Reaction to Convention Militarization
posted by Timothy Zick
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.
September 8, 2008 at 4:30 pm
Posted in: First Amendment
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Pole Dancing: The New Pilates?
posted by Timothy Zick
The New York Times, among many other outlets, reports today on a dispute between a pole dancing instructor and a local zoning board in a suburb outside Pittsburgh. The instructor was denied a permit to operate her business, which offers instruction in “pole dancing, power lap dancing, salsa and other forms of dance and fitness.” The permit was allegedly denied on the ground that the dance studio is an “adult” business illegally located within 1,000 feet of a bar in a residential area. The instruction apparently does not involve nudity and there is no audience. The instructor, represented by the ACLU, alleges that local officials denied the permit because of the design of her website and logo (which contains a high-heeled shoe) and because the dancing is “provocative” and involves “sexual innuendo.” If that is the case, the instructor may have a viable First Amendment claim (in addition to a statutory one regarding application of the zoning law itself). Contrtary to the popular portrayal of this case as one concerning the expressiveness of pole dancing, note that the ACLU is framing the issue as one of teaching or instruction rather than expressive dance. The Supreme Court has held that social dancing is not protected under the First Amendment. Performative dance, on the other hand, has received some protection. In particular, the Court has at least been willing to assume that nude dancing is expressive. On the matter of the expressiveness of exotic dance (including the sort that involves nudity), I recommend the (thick) description offered by Judge Richard Posner in his concurrence in Miller v. City of South Bend. Judge Posner begins: “The dancers were presentable although not striking young women. They danced on a stage, with vigor but without accomplishment, . . .” There is much, much more for the curious reader. Given the lack of any audience (other than those in the class), it seems wise to frame this as a “right to teach” case. Assuming this is protected activity, the allegations and quoted statements by officials seem to suggest content discrimination.
But I am as or more interested in the cultural implications of this case than its free speech aspects.
September 4, 2008 at 4:06 pm
Posted in: Constitutional Law, Culture, First Amendment
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Porn Air
posted by Timothy Zick
I’m delighted to be back at Concurring Opinions. As I did during my last visit, I plan to write primarily about First Amendment issues. During work on my book, Speech Out of Doors, I was immersed in some of the more traditional aspects of expression – public forum issues, face-to-face expression, acts of public protest, and regulation of public expression. I’ve been thinking lately about the extraordinary transformation of the First Amendment, particularly during the last decade or so. The very meanings of “speech,” “assembly,” “petition,” and “press” have been significantly altered, primarily as a result of technological and communicative advances. Among the changes are a variety of new forms of speech, online protests and assemblies, an increasingly Web-based politics (i.e., online fundraising, the YouTube debates, the recent Obama vice presidential text), and of course the phenomenon of a “citizen press.”
One significant aspect of this expressive transformation involves the mobility of expression. In an article and in the final chapter of my book, I examine some of the ways in which mobile computing technologies are transforming the communicative environment and the First Amendment. It is, of course, a tremendous convenience to be able to access the Web from wherever one happens to be. As well, new technologies can facilitate “smart mobbing,” public social networking, and spontaneous gatherings. But always-on access will occasionally expose us – in some cases fleetingly, and in others in a more intrusive manner – to the communicating and viewing habits of others. A few years ago I recall reading news reports about “drive-by porn” – the visible display of pornographic images on video monitors inside vehicles. Phone service providers in the U.S. have been much slower than their counterparts in other parts of the world to allow sexually explicit content to be accessed through their services. But given the market for such content, how long will this be the case? And now some airlines are making wireless Web access available on flights. This is welcome news for passengers who wish to remain connected in the air. But it has raised the concern that some passengers will access sexually explicit content in flight. This will render some passengers “captive” to expression they (presumably) will not want to see (and possibly hear). The airlines apparently plan to have flight attendants monitor Web use, and presumably intervene when “inappropriate” content is accessed. Some brief thoughts on “Porn Air” after the jump.
September 2, 2008 at 11:00 am
Posted in: Current Events, First Amendment, Privacy
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Funerals and Free Speech
posted by Timothy Zick
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.
October 30, 2007 at 3:50 pm
Posted in: First Amendment
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The Youngstown Question and the Presidential Contest
posted by Timothy Zick
As the confirmation hearings of Michael Mukasey demonstrate, perhaps the most pressing concern in the upcoming presidential election is the shape the office itself will assume in January, 2009. Mukasey has created controversy by professing to be unclear with regard to whether waterboarding is “torture” and, more importantly, suggesting that the president has the constitutional power (in national security contexts) to act contrary to duly enacted federal law. As to the latter position, Youngstown, its progeny, and most of our constitutional tradition strongly indicate otherwise. Because no question is more fundamental or important to the office, we ought to be asking the presidential candidates the Youngstown question too. Perhaps more than any other in recent history, this election raises questions regarding not only what kind of president the candidates will be, but more fundamentally what kind of presidency they envision.
A few of the candidates have addressed that question, or provided substantial hints. For example, Hillary Clinton recently pledged to “relinquish” some of the executive powers she says the Bush Administration has illegitimately claimed and exercised. If the claim is that President Bush has exercised power he does not have — say, the power to ignore federal statutes — then “relinquish” does not seem the appropriate term. One cannot “relinquish” what one never possessed. Perhaps not surprisingly, candidate Clinton did not provide specific examples of powers President Clinton would not exercise. We also ought to keep in mind that presidents have made similar pledges in the past, only to renege once in office. Among the Republican candidates, we are gaining a clearer picture of Rudy Giuliani’s vision of the presidency. Not surprisingly, candidate Giuliani offers a very muscular conception of executive power. He has reportedly surrounded himself with hawkish advisors with regard to foreign policy. Striking Iran, he says, is a more timely concern than many Democracts will concede. More specifically, like Mukasey, Giuliani has said he does not know whether waterboarding is “torture.” He has also derided characterizations of sleep deprivation as torture as “plain silly.” He favors “aggressive” questioning of suspected terrorirsts. These answers ought to raise even greater concern than those recently given by Judge Mukasey; after all, Mr. Giuliani seeks all of the executive power the Constitution vests in the presidency. In any event, it seems a very safe bet that President Giuliani would not relinquish any presidential authority; indeed he may even seek to enhance the powers of the office.
Admittedly, it is not easy to work Youngstown (or any other constitutional precedent, save perhaps Roe) into presidential debates. The scope of presidential power generally is too nuanced for sound bites, zingers, and applause lines. But every candidate ought to at least be asked whether he or she believes the president is, under any circumstance, above the law. If so, he or she ought to be asked to provide specifics, using current examples (wiretapping, detention, “enhanced interrogation,” etc.) as necessary. If there is no clear answer to that question, then it would seem our democracy is in serious trouble. As Giuliani himself once wrote: “Elections are necessary but not sufficient to establish genuine democracy. Aspiring dictators sometimes win elections, and elected leaders sometimes govern badly and threaten their neighbors.”
October 25, 2007 at 11:01 am
Posted in: Politics
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