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.