Liability for First Amendment Violations

As this item shows, it is one thing to demonstrate that public speech and association rights have been violated but quite another to actually hold governmental entities (and officials) liable.  Police officers may have qualified immunity in civil rights cases where the right at issue was not clearly established at the time of the police action.  And governmental entities may escape liability where no custom or policy of rights violations can be proven:

Columbia Police Officer Robert Miles violated the First Amendment rights of World Wide Street Preachers Fellowship members when he threatened to arrest them if they didn't end their abortion protest outside a church in February 2005, according to a ruling last year by U.S. District Judge Robert James.


But James also concluded that Columbia wasn't liable because the street preachers failed to prove that Miles' actions resulted from a town policy or custom. The group appealed, but a unanimous three-judge panel of the 5th U.S. Circuit Court of Appeals yesterday upheld James' ruling.

Plaintiffs in this case did not sue the individual officer.  And as the excerpt notes, the town escaped liability.  Thus, although the plaintiffs' First Amendment rights were violated they obtained no remedy.


  

Chinese Environmental Protest

It seems that Twitter and other technologies are catching on with some protesters in China.  This brief story indicates that a decent crowd turned out for an environmental protest against the siting of an incinerator.  The protesters used Twitter and other social networking sites to broadcast the event and increase turnout.  There was one other notable thing about this gathering.  Mass protests by peasants are now relatively common in rural parts of China.  This more urban demonstration, although organized by peasants, drew participation by white-collar workers from surrounding neighborhoods.

More on the Oyster Bay, NY Anti-Solicitation Ordinance

This from the NYT, regarding the town ordinance that appears to make waving from a sidewalk at passing motorists an offense.

Repression Breeds Dissent -- Iran

As in so many other instances, events in Iran are once again demonstrating that repressive state actions often breed dissent and fuel mass protests.  Protesters have been galvanized by state uses of force, including killings on an Iranian holy day.  The real question for the Iranian opposition is whether it can carve a movement out of the mass protests that begain this past summer, following the presidential election.  If that is to occur, the opposition must have a leadership structure.  And it must move beyond its own public violence, no matter how warranted it may seem at this moment.       

NYT Pictures of the Day

There are some very compelling pictures of public contention in this group, including Yemeni, Iranian, Israeli, and Hamas demonstrations and symbolic protests. 

Standing While Latino or "Brother Can You Spare a Job?"

According to the New York Civil Liberties Union, Oyster Bay, New York has adopted an ordinance that essentially criminalizes soliciting work while standing on a public sidewalk.  According to the NYCLU:

The ordinance violates the First Amendment by outlawing basic speech such as “waving arms,” “making hand signals,” “waving signs” and “jumping up and down.” It criminalizes this speech in “all of the areas dedicated to public use for public street purposes” and includes sidewalks, parkways, medians and curbs.

Communities across the U.S. have been trying for years to displace day laborers, which some view as a public nuisance or worse.  Oyster Bay claims that its ordinance is a safety measure, designed primarily to prevent solicitors from stopping passing vehicles.  But the restriction appears to be drawn in much broader terms.  Even if there is a history of efforts to crack down on day laborers in Oyster Bay, a court is not likely to view this as a targeted or content-based restriction.  Rather, it will be analyzed as a content-neutral time, place, and manner restriction.  The ordinance may not pass even the less demanding time, place, and manner standard.  It seems to broadly restrict or even prohibit solicitation from public streets and sidewalks, which are "traditional public forums."  The measure thus does not appear to be adequately "tailored" to the evil the town claims to be addressing.            

Restrictive laws like this have been invalidated by some courts.  In one case, the court found that the police had violated equal protection by engaging in a pattern and practice of sweeping day laborers from the streets.  Some courts have invalidated day laborer solicitation ordinances on First Amendment grounds.  I discuss such ordinances, and other mechanisms of "constiutional displacement" of vulnerable persons and groups, here. 

International Protests

Street protests have erupted in the past couple of days in Iran, Katmandu, and Taiwan.  In Iran, the death of a prominent dissident cleric brought tens of thousands to the streets for anti-government demonstrations.  The death may serve as a catalyst for the nascent protest movement in Iran.  In Katmandu, police responded with violence ("excessive force" according to U.N. officials) as Maoists, who recently abandoned the government, blocked roads and staged a general strike.  And in Taiwan, tens of thousands of pro-independence protesters demonstrated on the eve of a visit by a mainland Chinese envoy.

Howard W. Johnson (1922-2009)

Howard W. Johnson, who was president of M.I.T. during the turbulent anti-war protests in 1969, has died.  The NYT obituary is here.  Johnson is credited with bringing calm to a campus that was a focus of protests by Students for a Democratic Society and the Black Panthers.  In contrast to more aggressive and confrontational styles exhibited by leaders on other campuses, Johnson went among the students and faculty to listen to their concerns and calmly discuss the university's position.  He was able to defuse some of the tension on the M.I.T. campus through face-to-face communication and by making certain concessions regarding some of the defense programs that engendered protests.  Today's campus leaders would do well to follow Johnson's example.

Iranian Protesters and Justice

Revelations that Iranian prison officials may have beaten three protesters to death are only the latest shocking events that began in June with mass demonstrations in that country.  More than 70 protesters may have died during the demonstrations, and allegations have been made that authorities raped some of those detained.  Let's hope the criminal charges in these murder cases lead to meaningful trials, and convictions in the event the allegations are proven.   

Casualties of Modern Life

This short NYT piece laments the loss of eye contact in modern life.  As a former Brooklyn resident, the complaint certainly resonates.  Particularly in public places, people look up, down, to the side -- anywhere but directly at someone else.  Eye contact is indeed one of the "casualties of modern life."

There are related casualties, some of which profoundly affect public speech.  People seem less and less comfortable with and attuned to physical displays and contacts.  Traditionally, one of the unique benefits of public spaces is that they made it more difficult to avoid or ignore speakers and messages.  But with the rise of personal technologies, absent-presence (or present-absence) now seems common in public spaces.  People traverse public ways encased in technological bubbles, complete with their own personal soundtracks.  They are more difficult to jar, cajole, impress, distract, reach.  To be sure, people have always been somewhat uncomfortable with physical and tangible speech and contention.  But that very discomfort was an asset to speakers who otherwise could not be seen or heard.  Virtual is increasingly the norm.  It is a comfortable cocoon where only the speech we invite comes in.  In "networked" public spaces, eye contact is not the only -- or even the most significant -- casualty.                   

The Efficacy of Campus And Other Protests

This NYT article asks some interesting questions in reponse to the recent budget cut protests at several University of California campuses:  "So what kind of protests work? How is that judged? And who decides?" 

As I've noted in previous posts, some of the campus protests have turned violent.  Some students, intent on occupying university buildings, have been arrested for trespass.  As one student leader says, violence and vandalism may motivate some students to get involved; but it will likely repulse others, including the legislators these students actually want to persuade.  Protesters have always walked this tricky line.  Peaceful demonstrations can drawn some attention to a cause.  The larger the assembly, the more attention protesters are likely to receive.  But a sterile protest that does not disrupt campus business and thereby force others to take notice may have no real effect at all.  Disruption is a powerful tool.  Indeed, it may be the only effective tool protesters have.  Showing up for a single peaceful rally, waving signs, and then going home is not likely to advance the cause.

The questions posed are difficult to answer.  They apply to all protests, really, not just those on campuses.  I'll offer this:  An effective protest is one that manages to convey a coherent message, gets media and other attention, and motivates others to participate in the cause.  Whether one agrees with the message or not, the recent "Tea Party" protests seem to meet these basic requirements.  To require that the protest actually alter state funding decisions or otherwise reverse government's immediate plans is to require too much.  The civil rights protests would not, by themselves, meet that demanding test of effectiveness.  Who decides?  I suppose we all do.  Protesters are communicating with various constituencies and audiences"  fellow protesters, the general public, public officials, and the media.  Each judges the effectiveness of the protest in some manner.  Among these audiences, the media can be singularly important.  Coverage of the protesters' message is critical for reaching outside audiences.  But as I've written in prior posts, the media are somewhat biased in favor of conflict coverage.  This is another reason protesters sometimes resort to disruptive and aggressive tactics.  They sometimes see effectiveness as publicity, regardless of substance or content.

There are no easy answers when it comes to "valuing" protests.  Although I don't agree with all of their tactics or demands, I for one am heartened that some students are willing to participate in public displays of contention.  Some have even been willing to be arrestd for their cause.  This at least shows that campuses have not become, as Justice William O. Douglas once warned, "useless appendages" in our democratic society.  Students protests are not likely to change the painful budget realities in California.  But that does not mean they lack value or are wholly ineffective.            

Scrum in Copenhagen

According to this NYT report, climate activists and protesters clashed with police in Copenhagen.  Protesters were attempted to reach the Bella Center, which is where the delagates are meeting.  Apparently, at least some of the delagates were willing to meet with the protesters, but police pushed them back inside the Bella Center.  Police used batons, tear gas, and a water cannon in their attempt to disperse the crowd.  At least 250 people were arrested.   

Release of 2004 Republican Convention Documents Ordered

It is hard to imagine, but litigation stemming from claims by protesters arrested during the 2004 Republican National Convention is ongoing.  A federal judge has just ordered the release of 2,000 pages of documents relating to pre-convention surveillance. 

The NYPD engaged in a substantial covert surveillance operation during the 18 months leading up to the convention.  Some of the surveillance activity took place overseas.  Pre-event surveillance has become a common "militarization" tactic in recent years, particularly since the September 11, 2001 attacks.     

Copehnagen Climate Protests

Over the weekend, thousands marched in Copehnagen, where the U.N. climate summit is taking place.  The demonstration, and media coverage of the event, were typical in several respects:

1.  There were disparate voices in the assembly.  Protesters did not confine their message to climate change.  Vegans, anti-war demonstrators, and those urging the overthrow of the Iranian government all joined climate activists on the streets in Copehnagen.

2.  The diversity of messages made it more difficult for climate activists to communicate a unified message.  This is almost always the case during mass demonstrations.  Various groups use the opportunity to convey messages at high-profile events.  As a result, messages were likely diluted or altered.

3.  There was no single group in charge of the demonstration and march.  This relates to the first two points, of course.  With little organization, no unified message is possible.  As one participant said, "It seemed as if  no one was in charge, and there was no closure."

4.  The principal march was mostly peaceful.  But there were pockets of trouble.  Police in this instance seem to have acted with restraint, focusing on the most disruptive and potentially violent elements of the assembly.

5.  The NYT report focuses somewhat on the potential for disruption and public violence.  The report describes "bands of radical protesters" engaging in "spontaneous demonstrations" in parts of Copenhagen, and notes that police made over 950 arrests.  There were also "scattered reports of localized riots."  There was no apparent connection between the march and these events.  But the reporting might give some the impression that mob violence generally attends public events.  Media studies of reporting on public demonstrations indicate that press coverage is often biased in favor of conflict, which of course makes it more difficult for peaceful protesters to convey their messages.

G-20 Protesters Suit

Acording to this report, two protest organizations have sued Pittsburgh police and public officials for actions taken during the September G-20 summit.  Lawsuits following national security events have become quite common.  Municipalities have sometimes paid large sums to settle such suits, as New York City did following the Republican National Convention in 2004.  The plaintiffs in the G-20 suit allege that officers displaced and harassed them such that they could not offer assistance to protesters or convey their messages.   

People Out of Doors -- Photographs

The first two photos in the NYT "Pictures of the Day" are striking.  The first is of an assembly in Gaza City, and the second shows students protesters in Buenos Aires dodging water canon blasts.

NYT Year In Ideas: Protest Policing

The NYT published its 9th annual "Year in Ideas" issue.  One item relating to public protest made the list:  The Long Range Acoustic Device, a/k/a the "Sound Cannon."  As noted in the magazine, the Sound Cannon has already been used during public protests:

The Long-Range Acoustic Device (LRAD) is a powerful loudspeaker that can also emit a sirenlike noise at a volume of up to 152 decibels. According to national regulatory agencies, even seconds-long exposure to sound greater than 140 decibels brings risk of permanent hearing loss. Some people, like the demonstrators who heard it used by police officers this year at the G-20 meeting in Pittsburgh, call the LRAD an acoustic weapon. A spokesman for its manufacturer, American Technology Corporation, calls it a "communication device." But all agree: It's loud.

The LRAD has been on the market since 2003 and has been used by private companies and foreign governments, but it gained new attention this year when the Pittsburgh Police Department used it in what is believed to be the first public deployment of the siren in the United States. (The department says it did not turn the mechanism up to its highest volume.)

The LRAD has uses other than protest policing and crowd control.  For example, it can be used to broadcast emergency information.  In terms of protest policing, this is only the latest technology.  Mounted water cannons and surveillance cameras have also been used to control public assemblies.  The LRAD may be, as a spokesman says, more humane than rubber bullets.  But like any other technology, it may be abused by officers on the scene.  At its highest decibel level, the LRAD can cause permanent hearing loss.  One hopes that it will not be used to suppress legitimate, non-violent public dissent and will not harm anyone engaging in these activities.

More on the California Student Protests

Twenty-six students were arrested at San Francisco State University when they barricaded themselves inside university buildings and refused to leave.  More than three thousand students apparently take classes inside the affected buldings.  Sit-ins were important catalysts in the civil rights movement.  They were a popular repertoire of contention in student protests of the 1960s.  Lock-ins or occupations raise the level of contention and disruption.  As they did during the civil rights and anti-Vietnam eras, the students at SFSU locked themselves inside the classroom buildings such that no one else could use the facilities.  Their removal and arrests are, of course, perfectly appropriate.  It is not likely that the tactic will have any effect on the budget cuts that motivated the students.  Note that the student groups presented a list of demands that went far beyond bugetary concerns, including an end to U.S. involvement in Iraq and Afghanistan.  This not only renders the students' demands impossible to meet; it reduces the seriousness with which administrators and the public view the protest.  An effective protest has to stay "on message."

Westboro Baptist Church and Flag Desecration

Shirley Phelps-Roper, of Wetboro Baptist Church fame (infamy?), has lost an appeal to the Nebraska Supreme Court in which she challenged the state's flag desecration law.  Phelps-Roper is accused of allowing her son to stand on a flag during a public protest (and of herself wearing a flag-patterned skirt which she allowed to drag on the ground).  WBC is known primarily for its protests outside military funerals, at which it communicates the "message" that God is punishing America by killing soldiers) owing to the country's tolerance for homosexuality.  The protests have generated lots of controversy, as well as a spate of federal, state, and local laws that seek to regulate (or in some cases prohibit) the funeral protests.  In the terminology I use in the book, WBC seeks access to "contested" places -- symbolic places that facilitate communication of its message. 

The Nebraska statute appears to run afoul of Texas v. Johnson (1989), which invalidated a similar flag desecration law. 

The Latest from Iran

According to this report, there have been more than 200 arrests and an escalation of violence by both police and protesters on university campuses across the country. 

Places of higher learning are often critical spaces of contention.  In 1968, antiwar protests broke out on campuses in the U.S. and elsewhere.  In recent decades, however, campuses have been much quieter.  There are a number of reasons for this, including the widespread use of campus management systems (permit requirements, zones, etc.) that control public speech and assembly and student apathy.  Still, as noted in previous posts, students on some campuses still occasionally engage in mass protests and disruptive behavior (sit-ins).  Even today, campuses are potential incubators of public contention and dissent.     

Controversy Regarding 2002 IMF/World Bank Arrests

The controversy continues with regard to the 2002 arrests of peaceful protesters and bystanders in Pershing Park.  The arrests were made in conjunction with public policing of the I.M.F./World Bank meetings in Washington, D.C.  The District has paid out more than a million dollars to settle the cases of several of those arrested.  But the Distroct has drawn the ire of federal judges handling pending cases, in large part owing to its inability to produce documents and audio recordings relating to the arrests.  In particular, the judges want the District to produce the detailed log of events kept by police as a matter of course during such events.  A city report relating to the missing documents is here. 

One interesting note with regard to a recently settled case:  The F.B.I. was apparently involved in interviewing some of those detained in connection with the protests.  In the militarized context in which mass public assemblies now take place, it is not uncommon for multiple elements of the surveillance state to be involved in public policing efforts.  The F.B.I. may have been involved as a result of pre-protest surveillance of websites and social networking sites, which has become the norm for events like the I.M.F./World Bank summits.

Iran Student Day Protests

Despite the government's efforts to suppress public protests, thousands gathered at Iranian universities and elsewhere to demonstrate against the current regime.  As this NYT story reports, the protests were the most disruptive and violent since those that occurred after last June's disputed election.  The usual restrictions were placed on journalists and Internet communications.  But news of the demonstrations made its way out of Iran via Twitter and other social networking sites. 

Copenhagen and Militarization

According to a report in the NYT, Danish officials, anticipating detention of protesters at the U.N. climate meeting, have constructed a holding facility at an abandoned beer warehouse.  The facility consists of three dozen steel cages.  The holding pens are only part of the government's security preparations.  From the report:

Officials have made it clear that they aim to keep the peace during the 12-day conference, organized under United Nations’ auspices. From new laws rushed through Parliament allowing stiffer fines and extended detentions for those deemed unruly, to public displays of newly acquired anti-riot and emergency equipment, leaders here say they are preparing for the worst while hoping for the best. Meanwhile, a variety of protest and advocacy groups — some with obscure political lineage — have signaled in online postings and other public statements that they will not be cooperating. . . .

On Thursday, police set a car ablaze in a dramatic demonstration of a newly acquired water cannon that is also capable of dispersing crowds. Police officers from various parts of Denmark have been reassigned to Copenhagen, bringing the force here to somewhere in the vicinity of 6,500 officers, or more than half of the nation’s police corps.

Chapter 7 of my book refers to this set of circumstances as the "militarization" of public places.  Shows of force, mass detention, and aggressive enforcement of public order laws are now quite common during critical democratic moments like world summits.  In the U.S., militarization became prevalent after the 1999 WTO protests in Seattle.  Officials are determined to maintain public order, often at great cost (over $120 million so far in Copehhagen).  Protesters confronted with militarization tactics are either chilled or perhaps emboldened, depending on their goals.  Police claim that militarization is necessary owing to some protesters' plans, often announced via the Web (which police monitor), to disrupt the proceedings.  Protesters often claim that militarization increases the potential for violent confrontation and generally exacerbates tensions on the ground, leading to more disruptive protests. 

For the run mine protester -- i.e., one not affiliated with an organization committed to disrupting the proceedings -- it is hard to imagine a more chilling prospect than being faced with a water cannon and prolonged detention in a steel cage.  Where possible, police ought to focus on the disruptive elements or groups rather than rely upon militarization tactics that may suppress even lawful public demonstrations.  Given the militarization of public places during episodes of mass public contention, however, that may be much easier said than done.       

    

Climate Change Rallies in Europe

As reported by the New York Times, thousands of protesters who support a climate change resolution at the upcoming U.N. climate summit in Copenhagen took to the streets in London and marched around the Houses of Parliament.  As is typical with large demonstrations, the police and protesters disagreed regarding the number of protersters who participated; police said 20,000 while protesters estimated the assembly at 40,000.  Similar demonstrations occurred in several other European cities, including Brussels, Paris, and Dublin.

The "Private" Public Sidewalk

It isn't a speech incident, but this story attests to the manner in which officials sometimes abuse their discretion and privatize public spaces.  In this instance, New York City police officers blocked the public from accessing a portion of West 61st Street during the Macy's Thanksgiving Day parade.  A reporter inquired about the limited access:

The ultimate guardians, though, were two gray-suited Trump employees holding lists of people staying at the hotel and their invited guests. If you were not on the lists, you were not getting onto that street.

“Only for guests of the hotel and the apartment building,” one of the suits said when I tried to enter 61st Street.

“It’s a public street,” I said.

“Not today,” he said. “Only for guests of the building.”

When I persevered, he said, “Go speak to the cops.”

The police on the scene explained that the street was closed -- to the public only -- for "counterterrorism" reasons.  Right.

Another Leafleting Case

Eugene Volokh has flagged a case in which a Christian group dedicated to converting Jews alleges that it was barred from leafleting on the public streets.  Assuming the truth of the allegations in the complaint, I agree with Eugene that the group's First Amendment right to distribute literature may have been violated. 

As I explained in an interview relating to a similar case, leafleting has long been granted special constitutional protection.  In part this relates to the historical practice, prior to the development of the institutional press, of conveying messages by leaflets or pamphlet.  Protection is also granted to this means of communicating owing to the need to guarantee that even the "poorly financed causes of little people" have some means of reaching a public audience.  It may seem outdated in the digital era, but leafleting remains an important means of communicating information in public places.

    

Campus Protests

Campus protests have been in the news recently.  As this NYT story recounts, a student-led anti-sweatshop coalition on 100 campuses forced Russell Athletic to rehire over one thousand workers in Honduras.  Russell was concerned about losing business at campus bookstores and clothing shops, which sell athletic gear with school logos.  The story indicates that students engaged in a range of protest activities, including letter-writing campaigns and demonstrations.  The anti-sweatshop movement has engaged in more aggressive tactics in the past, including sit-ins.  The report indicates that students did not feel these tactics were necessary this time, although their willingness to resort to more aggressive repertoires of contention may have helped persuade university administrators to put pressure on Russell.

Meanwhile, students have been more aggressively protesting the California Board of Regent's recent decision to raise fees by 32%.  In contrast to the labor protesters, the students protesting the fee hike have engaged in tactics such as destruction of property, physical violence, and buiding sit-ins.  Police arrested a number of students on several campuses after students refused to leave university buildings.  Student leaders have made several demands, "including the impeachment of Mark G. Yudof, president of the university system; the elimination of the Regents’ positions; and an end to student fees and debts."  University officials appear to be willing to entertain more realistic demands. 

Fifth Avenue Freeze-Out

[Cross-posted at PrawfsBlawg]

The Second Circuit has upheld a NYC permit regulation that prohibits all parades on Fifth Avenue (15th to 114th Streets) "unless the parade was held at that location prior to the promulgation of these rules"[2001]. The case, which was decided by a two-judge panel (then-judge Sotomayor was the third judge on the original panel), is International Action Center v. City of New York. The city's permit scheme does allow for the issuance of special permits for Fifth Avenue and other locations, for "celebrations organized by the City honoring the armed forces; sports achievements or championships; [and] world leaders and extraordinary achievements of historic significance." Absent a special permit, however, Fifth Avenue can host no more than the fifteen annual "grandfathered" parades.


The court held that the Fifth Avenue Rule is a content-neutral time, place, and manner regulation, which was justified by the usual concerns (traffic congestion, public order) and by the "over-saturation" of parades, particularly in midtown Manhattan. I don't question the court's reasoning or its disposition under current First Amendment standards (which I, like others, have criticized). The rule prohibits all "new" parades, regardless of content. Under the permissive intermediate scrutiny standard, it is justified with reference to the concerns stated above. The court found that the 100-block ban was sufficiently "narrowly tailored" and that other streets, although not "perfect substitutes," were available for parades.

The rote application of time, place, and manner standards obscures a couple of important concerns. The first is that the Fifth Avenue Rule privileges a select few organizations, those that managed to hold annual parades prior to 2001. These are primarily cultural parades or events. Yes, new events may qualify for permits on other streets. But as the court acknowledged, Fifth Avenue is a unique venue. It is arguably the most famous parade route in the city. Under the Fifth Avenue Rule, this traditional public forum will primarily host cultural events such as the Columbus Day, St. Patrick's Day, and Norwegian-American 17th of May parades. While it may not be "content-based," the Rule privileges cultural inscription over political and other types of public displays (particularly those that are spontanous). Why should "historic" parades receive an exclusive use permit for this venue? Why not a lottery, or some other system that does not simply ban all post-2001 events? The second concern is the level of discretion built into New York City's permit regulations. City officials have disregarded the Fifth Avenue Rule on certain occasions. And then there is the "special permit" regulation. What exactly constitutes a "sports achievement"? A Knicks winning streak? What are "extraordinary achievements of historic significance"?

Most will probably not be disturbed by the Rule. After all, who doesn't like Norwegian-Americans? But this disposition is of a piece with others that have limited political contention and public displays in some sacred venues. In New York City itself, protests on the Great Lawn have been limited to 55,000 persons out of concern for the condition of the lawn. Numerous public "beautification" projects are slicing up other historically significant public forums. And restrictive permit requirements have been proposed in recent years in response to public displays like the Critical Mass bike protests. The language of time, place, and manner -- "content-neutrality," "significant" government interests, "narrow tailoring," and "adequate alternative channels" -- typically fails to capture, much less halt, this erosion.

The Velvet Revolution

The New York Times has a fascinating story today about the role that music, and in particular the group Plastic People of the Universe, played in the Velvet Revolution.  This was the overthrow of Communism in Czechoslovakia, spurred in large part by peaceful mass demonstrations in November and December 1989.  The roots of a revolution can be humble indeed.    

Empty Holster Protests and Campus Speech Zones

As reported by the Foundation for Individual Rights in Education (FIRE), there is an ongoing controversy at Tarrant County College in Fort Worth, Texas, involving an attempt by students to mount a gun-rights protest on campus.  Administrators have allegedly refused to permit the students to wear empty holsters as a symbolic protest against laws and policies that prohibit the carrying of concealed weapons on campus.  They have also allegedly limited any protest to the school's tiny "free-speech zone."

As I note in Chapter 8 of the book, which discusses "Places of Higher Learning," colleges and universities continue to resport to expressive zoning despite the fact that FIRE and other advocacy groups have successfully challenged this tactic several times in campuses across the country.  This episode also demonstrates that students associated with conservative causes are as or perhaps more likely to engage in public protest and to challenge expressive limitations on campuses than their liberal classmates.  The rise of conservative and libertarian protests on campus can likely be traced to some extent to concerns about "political correctness," including the enforcement of speech codes and controversies regarding academic freedom on campus.

Update:  A federal judge has issued a temporary restraining order that will permit students at TCC to wear empty holsters on campus, except in hallways and classrooms.

Free Speech and the Furrier

I've posted an entry at Prawfsblawg on an interesting case that involves the application of Oregon's Elder Abuse Act to a public protest by animal activists of a Portland furrier.

Campus Speech Zone Snares Professors

Over at Prawfsblawg, Orly Lobel highlights a situation in which university professors at Southwestern College in San Diego have apparently been sanctioned for failing to confine their protest over budget cuts to designated free speech zones and for violating the school's freee speech policies.  As I argue in Chapter 8 of the book, the "Campus Order Management System" looks a lot like the bureaucratic regime applicable to speech outside campus gates.  expressive zoning continues to confine campus speakers to sometimes small areas in less-than-central locations.  In this case, an apparently peaceful protest has resulted in sanctions being imposed on faculty involved in a protest with students.  The protesters were apparently seeking a more effective place from which to convey their message.

Abortion Clinic Buffers and Bubbles

Abortion clinics have been hotly contested places on our expressive topography for several decades.  As many know, clinic protesters have sometimes engaged in destructive and violent behavior.  The Supreme Court has addressed limits on public speech near such places on several occasions.  It has generally upheld laws that facilitate acccess to the clinics.  In one case, it also upheld a restriction that precluded sidewalk counselors and others from coming within 8 feet of a clinic patron without her consent.  These "buffer" and "bubble" provisions can have a substantial negative effect on the conveyance of messages at abortion clinics.  The buffer may separate speakers from the "contested" place, depriving speakers of important symbolic and other advantages.  The bubble may preclude certain forms of conversation and the distribution of literature in "embodied" places (personal space).

The Third Circuit recently invalidated a Pittsburgh ordinance that combined buffer and bubble elements.  The effect of the combination in this case was apparently to preclude speakers from approaching clinic patrons, even for the purpose of handing out leaflets, and to sometimes prevent them from speaking to patrons in a normal conversational tone. 

As I note in the book, the abortion clinic cases are some of the most difficult in terms of reconciling fundamental First Amendment principles relating to public speech and audience interests in dignity and repose.  Ultimately, however, speakers must be permitted to approach audiences in public forums for the purpose of leafletting and engaging in conversation or counseling.  That is the principle the Third Circuit appears to have upheld in its decision.

The court's decision is here.   

  

Local, Regional, and National Protests

This post points out the apparently different attitudes and practices of Indians and Pakistanis when it comes to public protests.  In particular, the author notes that Indians tend to engage in localized protests, whereas Pakistanis have recently been galvanized on regional and national levels. 

In the United States, protesters organize on all levels, from the very local to the national, depending on the issue.  Some protests that start out as local events may lead to national movements.  The civil rights movement is a good example, and there are many others.  Some protests are distinctly local, as where a group assembles to protest city council practices or policies, or to assemble at a particularly symbolic public place.  Many factors, including the resources of the protesters, public support, and the nature of the precipitating cause of the protest, will influence its geography, size, and duration. 

The author of the post suggests that the relative infrequency of regional or national protests in India may have something to do with the presence and relative stability of democratic structures and institutions in that country.  Perhaps, but of course even in an advanced democracy like the U.S. one sees regional and national protests movements.  Some of the reticence in India may relate to cultural norms, or fear of official reactions to public dissent.  Or perhaps it is the case, as it appears to be in Japan, that the public lacks the necessary training to participate in effective public protests. 

     

Do Public Protests Matter?

This entry at Freakonomics considers whether public protests "matter," in the sense that they lead to changes in policies, social movements, or group solidarity.  One thing the commenters agree upon is that public protests are rarely, if ever, immediately effective in any of these respects.  This raises the obvious question whether, in an age of instant communication and immediacy expectations, public protests are destined to decline over time.   

Exit Polling and Buffer Zones

Expressive zoning is a phenomenon that affects many forms of public speech across the expressive topography. In an effort to protect certain public places from disorderly displays, and certain audiences from intimidation, fraud, and other harms, laws and regulations often mark off spaces in which expression and assembly are prohibited. "Speech-free zones" have been erected near abortion clinics, government buildings, cemeteries, private residences, and polling places.

As reported here, a federal court has granted a preliminary injunction against the enforcement of a 100-foot buffer zone forbidding exit polling and other "expressive activity" near New Jersey polling places. In Burson v. Freeman (1992), the Supreme Court upheld a Tennessee law that prohibited the solicitation of votes and the display of campaign materials within 100 feet of entrance of any polling place. The Court concluded that Tennessee had compelling interests in preventing voter intimidation and election fraud, and that the 100-foot zone was adequately tailored to address these concerns. But at least ten courts have rejected bans or restrictions on exit polling near polling places. Most have found no evidence of disorderly conduct associated with the practice of sampling and interviewing voters near polling places. Moreover, there are concerns that buffer zones around polling places adversely affect the accuracy of exit polls, as voters are able to exit the area before a proper sample can be taken.

The New Jersey Supreme Court upheld the buffer zone, opining that "the last 100 feet leading to a polling place belong to the voters on Election Day." The spaces in question, typically public sidewalks, streets, adn parking lots, do not "belong to the voters." They are traditional public forums, which ought if anything to "belong to" speakers. In any event, there is no reason voters cannot share the space with pollsters -- and even other speakers, so long as no disruption occurs. Buffer zones at polling places are part of a disturbing trend of protecting audiences from inconvenient public speech and assembly. The courts have been right to reject these spatial controls in the case of exit pollsters, who perform a valuable democratic function.

Places of Higher Learning

As discussed in Chapter 8 of the book, many public colleges and universities have essentially adopted the speech bureaucracy in place outside campus gates for the spaces within. Among other things, this includes application of insurance and permit requirements and designation of "speech zones." I call this a "Campus Order Management System," a variation of what political scientists have referred to as a "Public Order Management System" applicable in public places.

In many instances, campus officials change these policies, in particular the zoning requirements, after a lawsuit is filed or the press reports on the restrictions. This case, which involves the designation of speech zones and an insurance requirement at Arizona State University, seems to involve this pattern. The oral argument suggests that the case may be decided on mootness grounds. The plaintiffs want a judgment on the merits, both for precedential value and, one assumes, an award of attorneys' fees.

You can read more about speech zoning and other free speech issues on campuses across the country on the FIRE website, which is included in the links section of the blog.

Strength in Numbers

Hundreds of garment workers recently rallied in New York City to protest building and zoning plans for the garment district. The story reminded me of the battles waged by the urbanist Jane Jacobs against plans to develop lower Manhattan, although the stakes here are smaller. The clashes between Jacobs and Robert Moses are engagingly recounted in Anthony Flint's new book, Wrestling With Moses (Random House).

Protest Militarization and Counter-Measures

As recently reported in the New York Times, police arrested a Queens man for allegedly helping protesters at the recent G-20 summit in Pittsburgh avoid police orders to disperse. In my book, I describe the new "militarized" environment at world summits like the G-20, political conventions, and other critical events. I recommend that protesters adapt to the new surveillance of public assembly and speech by using technology to network and coordinate. The arrested man was using Twitter to communicate with protesters in the streets. Eugene Volokh suggests that this may be a difficult case of what he calls "crime-facilitating speech." We'll have to wait for more facts to be reported to determine whether the tweets actually violated any law. The police are no doubt anxious to retain their technological advantage during public assemblies and protests, and to ensure compliance with lawful orders. But just as surely, protesters ought to be allowed to use technology to coordinate their public asemblies and displays.

Welcome

Greetings and welcome to Speech Out of Doors. Let me begin with a brief description of the book that inspired this blog:

Even in an age characterized by increasing virtual presence and communication, speakers still need physical places in which to exercise First Amendment liberties. This book examines the critical intersection of public speech and spatiality. Through a tour of various places on what the author calls the "expressive topography," the book considers a variety of public speech activities including sidewalk counseling at abortion clinics, residential picketing, protesting near funerals, assembling and speaking on college campuses, and participating in public rallies and demonstrations at political conventions and other critical democratic events. This examination of public liberties, or speech out of doors, shows that place can be as important to one's expressive experience as voice, sight, and auditory function. Speakers derive a host of benefits, such as proximity, immediacy, symbolic function, and solidarity, from message placement. Unfortunately, for several decades the ground beneath speakers' feet has been steadily eroding. The causes of this erosion are varied and complex; they include privatization and other loss of public space, legal restrictions on public assembly and expression, methods of policing public speech activity, and general public apathy. To counter these forces and reverse at least some of their effects will require a focused and sustained effort - by public officials, courts, and of course, the people themselves.

Despite the proliferation of communication technologies speech out of doors continues to occur with some frequency in this and other countries. People still gather in public places to make their voices heard. Occasionally, speech out of doors leads to legal reform; very infrequently, it may lead to regime change. Public speech also remains critical to social movements. The thesis of my book is that we are in danger, in the U.S., of losing public space, the critical platform for speech out of doors, owing to regulations, privatization, public planning, technological alternatives, and public attitudes.

Although I will occasionally post items about the book itself (reviews, commentary, etc.), my primary intent is to publicize and analyze issues relating to public speech, assembly, dissent, and contention in traditional public (and quasi-public) places. I remain intensely interested in the current and future prospects for speech out of doors, both in the U.S. and elsewhere. I welcome your readership and invite your comments.

Tim Zick