Tuesday, February 23, 2010


Only a handful of states require that private malls and other private premises allow public access to their properties for expressive purposes.  Among some in that handful, the expression that must be facilitated is limited in some measure (i.e., to gathering petition signatures).  The First Amendment and most state constitutional counterparts protect speakers only from the actions of the "state."  Of course, the state is often heavily involved in the financing and zoning of large malls.  Some malls even house government offices.  But according to most courts (and federal "state action" principles) this is not sufficient to implicate constitutional protections.  At one point the Supreme Court was willing to treat the shopping mall as the functional equivalent of the town square.  But it changed its mind in short order.  And these places have been off the First Amendment grid or topography for some time.

In the book I call the product of this situation the "non-place."  Insofar as speech is concerned, these places do not exist.  They are for tranquil browsing, sitting, exercising -- almost any other human activity except speaking, assembling (even in small numbers), or leafletting.  In some of the few places where people still gather in large numbers, speakers can be thrown off the premises for the most inane reasons. 

This report describes a not-at-all-uncommon trespass case brought against two mall patrons (a father and son) in New York for wearing anti-war or peace t-shirts reading "Give Peace a Chance" and "No War With Iraq."  (Ironically, the shirts were actually purchased at the mall.)  Apparently some of the mall's patrons objected to the messages, which were conveyed prior to the invasion of Iraq.  A "commotion" ensued.  The father, who refused to remove his t-shirt, was arrested for trespass.  The Appellate Division upheld the trespass conviction on the ground that the patron did not demonstrate sufficient state involvement in the eviction.  The Crossgates Mall thus remains a non-place, safe from the tumult and discord produced by a couple of t-shirts urging peace and diplomacy instead of war.

The decision is Downs v. Town of Guilderland.

Sunday, February 21, 2010

If A Protest Happens in the Forest . . .

According to this report, a federal judge has overturned several convictions of protesters affiliated with the Rainbow Family of Living Light who gathered on U.S. forest land without obtaining the required permits:   

The Rainbow Family is a loosely connected counterculture group that gathers on public land somewhere in the United States every summer, to party, play and pray for peace and the environment. Every year, the gathering culminates in a July 4 prayer circle, and every year, they battle the U.S. Forest Service over the right to be there.

The Forest Service requires groups of 75 or more to obtain noncommercial use permits when congregating in a national forest, but many Rainbow Family members refuse to sign or acknowledge the need for those permits.

In 2005, during a dispute over where to set up camp in the 900,000-acre Monongahela wilderness, more than 140 people were cited for the misdemeanor offense of failing to secure permits.
The trials of eight members of the Rainbow Family Coalition were deemed procedurally defective, owing to the fact that an adequate record had not been created for review on appeal.  A magistrate tried the group in a makeshift courtroom in the Monongahela National Forest.  Apparently the recording equipment used to transcribe the trials was defective.

Although the decision did not reach any substantive speech issues, the case raises an interesting First Amendment question regarding protests on public lands.  If the protest takes place in a public venue where no audience is present, do the protesters have any First Amendment speech or expressive association rights?  In some cases, courts have expressed skepticism that speakers engaging very small audiences have any strong First Amendment interests in conveying their messages.  The Supreme Court has made this point in a case involving  a residential protest.  But other courts have indicated that the lack of any general public audience does not negate or weaken a First Amendment claim.  One case involved a protest in a remote forest area. 

Even if they are not seeking to reach a targeted or general public audience, protesters have self-actualization and solidarity interests in these circumstances.  The act of gathering may itself be a form of dissent.  There is no reason, then, why they should not in a proper case be allowed to assert a First Amendment challenge to permit and other regulations.         

Tuesday, February 16, 2010

Protest Policing in Vancouver

This article from the NY Times reports on some of the protest policing activities that preceded the Winter Games.  I have been critical of similar policing activities, including covert surveillance and apparent intimidation tactics, in the U.S.  It is a shame that such tactics have broader appeal in law enforcement communities.  China, no stanger to aggressive repression, seemed to imitate the "protest zone" approach used in the U.S. during the Summer Games.  Is Vancouver imitating the U.S. as well?  Are forces there consulting with U.S. security experts?

Critical Mass Ruling

According to this report, a  federal judge has upheld the application of parade permit rules to the Critical Mass bicycle protests.  Henceforth, participants will be required to apply for a permit from the City if they number 50 or more riders.  Although the riders object that the permit schemes are onerous and will deprive their gatherings of expressive spontaneity, courts have routinely upheld similar requirements on safety and public order grounds.  Permit schemes are a firmly entrenched part of what some political sociologists have called the "public order management system."      

Panel on the Civil Rights Sit-Ins

The First Amendment Center and the Nashville NAACP recently held an event that examined media coverage of the civil rights sit-ins.  Details here.

Thursday, February 11, 2010

Iranian Government Controls Protests

Accirding to this report, the Iranian government has successfully minimized and controlled public protests.  A critical mass of protesters did not materialize, and a pro-government rally seems to have garnered most of the public attention.  It appears that the government's pre-protest tactics, its show of force, and its own rally combined to suppress dissent on the anniversary of the Islamic Revolution. 

Wednesday, February 10, 2010

Pre-Rally Repression in Iran

Acccording to this report in the New York Times, Iranian officials are cracking down on activists in advance of anticipated protests during the anniversary of the Islamic Revolution.  According to the report:
While a number of well-known reformists were detained shortly after the contested presidential election last June, the ranks of those imprisoned now include artists, photographers, children’s rights advocates, women’s rights activists, students and scores of journalists. Iran now has more journalists in prison than any other country in the world, with at least 65 in custody, according to Reporters Without Borders.

Reports have filtered out from Iran of people being roused from their beds during midnight raids and disappearing into the penal system without an official word to family and friends, and of overcrowded jails and long stays in solitary confinement, according to human rights groups.

Music of the Civil Rights Movement

President Obama recently celebrated the music of the civil rights movement with an event at the White House.  According to this report, he credited the music and the musicians who write and performed it with fueling the protest marches and civil disobedience.

Tuesday, February 9, 2010

Surveillance of Abortion Activists

According to this report, the Department of Homeland Security created a threat asssessment of abortion activists last year before an expected rally in Middleton, Wisconsin.  Owing to the limited distribution of the assessment (it was shared only with local law enforcement before being destroyed), the Department concluded that the report would have no effect on civil liberties.

This sort of spying on civil rights activists by federal, state, and local officials is not an isolated incident (see here, here and here).  In the book, I discuss the "militarization" of public protest.  Collecting "threat" information about protest groups is one aspect of militarization.  A "24" mentality seems to have seeped into protest policing over the past couple of years. 

The Department's confidence that such surveillance will have no effect on civil liberties may be unwarranted.  Protesters are becoming aware of this form of surveillance.  Speakers may understandably not wish to be on the threat lists compiled by officials.  Compiling threat assesssments and reports concerning entire groups of lawful protesters seems not only unnecessary but potentially chilling as well.    

Thursday, February 4, 2010

Opposition Leaders in Iran Urge Protesters to Defy Government

As reported by the New York Times, Iran's opposition leaders are encouraging protesters to defy a ban on protests in effect on February 11, the thirty-first anniversary of the Islamic Revolution. 

This is a very dangerous gambit.  Iran has recently executed several protesters, and will likely continue to do so.  The government has also warned that force will be used to quell any protests on the 11th.  Whether protesters will have the fortitude to defy the ban remains to be seen.        

Wednesday, February 3, 2010

UC Protests as "Tantrums"

In a post on Concurring Opinions about the recent protests on UC campuses, Deven Desai wrote:
I love California, and I love the University of California. I am saddened by the recent financial problems the state and the entire education system faces. But I am more upset by what seems to be a failure of the education system: people who think 60s style protests are useful and wise responses to problems they helped create.

Sit-ins, threats, throwing food at Regents, and chants of the “What do we want? X! When do we want it? Now!” ilk remind me of a five year old throwing a tantrum; not intelligent people trying to change the system and take responsibility for their role in the problem. When I was at Berkeley, a professor noted that protesting the first Iraq war (especially in the Bay Area) was not as effective as the same thousands of people writing to Congress members and being clear where their donations and votes would go in the future. The same applies to the education funding problem.
As I point out in the book, public contention like this may not be the most effective way to change policies.  That was true even in the 1960s, of course.  But putting aside the self-fulfillment and solidarity benefits protesting students might experience, I don't think we should liken them to spoiled children.  Public activism of this nature still has its place.  Letter writing and its modern-day equivalents -- email, text, and tweets -- may not be terribly effective either.  "Astro-turf" groups and spammers often lead such campaigns.  Legislators must wonder about the bona fides of the vocal majority.  The only real, physical measure of public discontent may be right out on the street or on campus.

One can certainly take issue with some of the students' repertoires.  Occupations during classes or exams, as well as violence, should be discouraged.  But remember that in 2006 Galludet students actually forced leaders to choose a new president by staging public protests on campus.  Student protests are not a manifestation of the "failure of the education system."  They may be manifestations that it is functioning after all.  

Kaliningrad Protests

According to the story in the New York Times:
Thousands of people poured into Kaliningrad’s central square on Saturday, protesting tax increases on automobile imports, cuts in social welfare programs and high utility costs, organizers said. Numbers varied, with the police saying that no more than 6,000 attended, while organizers said there were over 10,000.

The protest, led by a loose coalition of opposition groups, was uncharacteristically large for Russia, where riot police officers are regularly sent to break up even small rallies.
So far, there has been little resistance from authorities, which is also uncharacteristic.