Monday, November 30, 2009

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  It may seem outdated in the digital era, but leafleting remains an important means of communicating information in public places.


Monday, November 23, 2009

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. 

Thursday, November 19, 2009

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.

Monday, November 16, 2009

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.    

Monday, November 9, 2009

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.

Wednesday, November 4, 2009

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.

Monday, November 2, 2009

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.