Wednesday, March 31, 2010

Curfew Upheld

The Idaho Supreme Court has upheld a late-night curfew against a First Amendment challenge.  According to the opinion:

The Ordinance prohibits a minor from being in public from 11:00 p.m. till 5:00 a.m. unless one of the exceptions to the ordinance is applicable. A minor may be in public during those hours if: (1) he is accompanied by a parent or legal guardian; or (2) the minor is on an ―emergency errand or other legitimate business at the direction of his ―parents or legal guardian or custodian or school and has ―some form of documentation as to the business to be performed. Doe argues that the broad reach and narrow exceptions of the Ordinance prohibit protected conduct including attending religious exercises, town hall meetings, and school events. Accordingly, Doe argues that the Ordinance constitutes an impermissible time, place, and manner restriction on speech.
The court rejected this claim.  A key factor, one the court said distinguished this case from others invalidating similar curfew measures, was that the ordinance allowed minors to be present in public forums so long as they had some form of written permission from a parent. 

"Critical Mass" Settlement

As reported here by the NY Times, the City of New York has agreed to pay $98,000 to settle the civil rights claims of several cyclists involved in the "Critical Mass" bicycle demonstrations.  Some of the claims settled involved aggressive actions taken by the NYPD against individual cyclists, a few of which were captured on video and posted online.  The "Critical Mass" bicylists have clashed with police since at least 2004, when riders claimed that NYPD officers were harassing them during events leading up to and during the Republican National Convention.    

Monday, March 29, 2010

Krishnas Lose Battle Over Solicitation at LAX

The Supreme Court of California has upheld (in a unanimous opinion) a Los Angeles ordinance prohibiting persons from soliciting funds at Los Angeles International Airport.  Hare Krishnas brought suit challenging the ordinance as a violation of the free speech clause of the California Constitution. 

The court was asked to decide two questions: (1) whether the airport (including the terminal, the surrounding sidewalks, and the parking areas) is a public forum under the free speech clause, and (2) if so, whether the solicitation ban violates the California Constitution.  The court declined to decide the first question, ruling that even if LAX is a public forum the ordinance is a reasonable time, place, and manner regulation.  The California Supreme Court concluded that solicitation of donations poses unique dangers of coercive or fraudulent conduct.  Those dangers were exacerbated, according the court, in a busy international airport like LAX.  The ordinace was enacted for the purpose of addressing these dangers, said the court, and was narrowly tailored to face-to-face solicitations.  The Hare Krishnas remained free to distribute lierature, speak to willing travelers, and even solicit by distributing self-addressed stamped envelopes.  A concurring opinion by Justice Kennard concluded that under the California Constitution the airport's public areas are indeed public forums. A concurring opinion by Justice Chin concluded that LAX is a non-public forum. 

The Supreme Court has answered the question whether airport terminals are public forums in the negative, reasoning in part that these places have not been around "from time immemorial" and are not generally designated for expression.  In all other respects the Supreme Court of California's decision is consistent with the manner in which the Supreme Court has addressed solitiation in airports and other crowded public venues under the First Amendment.  The Court has upheld bans on direct solicitation in crowded places like airports for essentially the same reasons articulated by the Supreme Court of California.

Many airport terminals are essentially like Main Streets, in the sense that they have commerical establishments, thoroughfares, and even some public offices and functions on site.  But as the Supreme Court's precedents suggest, officials have broad discretion to limit speech in the terminals and surrounding public areas.  Since September 11, 2001, it has been more difficult to advocate for robust speech rights in the public areas of major international airports.  I am less certain of the dangers of theft and fraud in direct solicitation situations than the courts seem to be.  The cases require no proof that this is a real danger or has occurred with any frequency.  Regardless, it is fortunate that at LAX and some other airports the restrictions are narrowly tailored to direct face-to-face solicitation.  Airports are some of the only places where a large public audience can be found in our contemporary society.  Yet they are essentially treated as non-places --venues devoted solely to travel.  Accepting, as I think one must, that the travel function is primary, allowing for at least some face-to-face expression and distribution of literature at these places preserves at least some limited breating space for public speech.    


Sunday, March 28, 2010

"Sidewalks Are For People"

This is the apt name of a recent protest against a proposed San Francisco ordinance that would prohibit sitting or lying on city sidewalks.  Apparently Mayor Gavin Newsom was finally convinced of the need for the ordinance after taking a walk with his child on Haight Street (and claiming to see a man smoking crack on the sidewalk).  Hadar Aviram has some interesting thoughts in this post on PrawfsBlawg regarding the sociological and criminal implications of the proposed ordinance.  As Rick Hills points out in a comment, the Ninth Circuit held that a similar Los Angeles "anti-camping" ordinance violated the Eighth Amendment's ban on cruel and unusual punishments.  I'm less confident in the court's 8th Amendment reasoning than Rick seems to be, but perhaps the decision will convince the council to withdraw the proposal.

I see this ordinance as part of a pattern of governmental displacement of the homeless and other vulnerable groups.  We might consider it alongside the recent Arizona proposal to allow police to arrest undocumented aliens for "trespass" if found in the state.  As I argue in this piece, these and other forms of "constitutional displacement" use spatial regulation to banish or remove unwanted persons from public spaces. 

There are some specific First Amendment implications.  This ordinace would become part of the public order management system used to restrict public assemblies and contention.  Spontaneous gatherings of a few people or small groups might be chilled or prevented under an ordinance that criminalizes sitting or lying on public sidewalks anywhere in the city between 7 a.m. and 11 p.m.  So might panhandling, which is arguably protected speech.  If speakers or assemblies are blocking the sidewalks, then police may remove them.  (Crack smokers can of course be arrested for that activity.)  However, if they are engaging in a symbolic lie-in or sit-in, or are otherwise engaged in expression but not causing any disruption or obstruction, then it seems to me that the state needs a more important reason than "business interests" or "public aesthetics" to prohibit merely sitting or lying on the sidewalks.  The public sidewalks are, after all, traditional public forums.  Mayor Newsom will just have to share them with the public. 

Thursday, March 25, 2010

Flash Mobs

Flash mobs -- impromptu public gatherings facilitated by social networking sites   -- can be a valuable public protest tool.  Unfortunately, they can also turn into violent events.  As the New York Times reports, recent flash mobs in Philadelphia have taken a violent turn with fights and vandalism.  Authorities have vowed to monitor social networking sites and take other actions to control these public gatherings. 

"Freedom Glows"

Randy Barnett (Georgetown) highlights an upcoming event on the National Mall.  I have to say, the "loss of freedom" argument regarding the health care legislation falls a bit flat for me.  That argument holds, I would suppose, for countless laws and  regulations that constrain individual liberty.  I suppose this one is being singled out as particularly egregious. 

In any event, I fully support the planned (peaceful) vigil on the Mall.  It is classic speech, assembly, and petition in a sacred public place (assuming, of course, a permit is issued).  If "the people" want to demonstrate their disapproval of government, this may be a more effective display than the recent disruptive behavior in the House gallery and the communication of threats to legislators.

Monday, March 22, 2010

Supreme Court Declines to Review Massachusetts Abortion Clinic Free Speech Case

Today the Supreme Court declined to review a decision upholding a Massachusetts law that limited protests and other speech activity within 35 feet of all abortion clinics in the state.  The case presented an opportunity to apply and perhaps revisit Hill v. Colorado, a 2000 decision upholding a statute limiting speech near health clinics.

Hill and other abortion clinic protest cases examined the constitutoinality of imposing statutory or injunctive buffers and personal space bubbles around clinic properties and patrons.  Aspects of these decisions, in particular the ruling in Hill, have been criticized by commentators across the ideological spectrum.  Several law professors, including Rick Garnett and Eugene Volokh, filed an amicus brief urging the Court to take the case.  (I was asked to sign but was unfortunately traveling as the brief was being drafted and reviewed.)

The Massachusetts law appears to be especially restrictive.  Protesters claim that it essentially denies them any meaningful opportunity to engage in counseling and other speech activity near abortion clinics.  Although it singles out speech near abortion clinics rather than health facilities in general, and appears to permit certain speech by staff and perhaps supporters of clinic patrons, the Commonwealth successfully defened the law as a valid time, place, and manner regulation.

The case is McCullen v. Coakley.  The cert. petition is here.   

Protest Roundup

Lots of public protests and demonstrations in the news:

The Thai protests continued, but the number of protesters declined and the Prime Minister did not appear to be on his way to stepping down.

Turnout apparently fell short of protesters' expectations for the "Day of Anger" targeting Prime Minister Putin.  Security forces reportedy pressured opposition groups not to participate.

Tens of thousands of immigrants and activists turned out on the National Mall yesterday to urge Congress and the President to enact comprehensive immigration reform.  The protesters were competing for public and media attention with the climactic votes in the House on health care reform.  Activits plan to have demonstrations in several cities in the next feew months, hoping for a repeat of the large demonstrations held during the summer of 2006.

Thursday, March 18, 2010

Thai Protests Continue

Story here.  It seems the number of protesters has diminished.  It's also interesting that the authorities appear to be facilitating some of the protest activity, or at least not impeding it.  For example, police allowed protesters to get close enought to the Prime Minister's residence to engage in the symbolic throwing of human blood.  This may undermine the protests to some extent.  Protesters may seek  more confrontation in order to draw support and sympathy (not to mention media coverage) for their cause. 

Wednesday, March 17, 2010

Snyder v. Phelps

Dan Solove at Concurring Opinions has some inciteful commentary on the tort claims underlying this case, which as noted earlier involves a protest by members of the Westboro Baptist Church near a cemetery where a military funeral was taking place.  I agree with Dan that the basis for the tort claims seems very weak.  Like others, I am also puzzled as to why the Court took this case.  It is not customary to take a case like this one simply to affirm the lower court.  Clarifying whether the "actual malice" standard applies in a case involving a private figure might be worthwhile.  But as Dan and others (including the Fourth Circuit panel) have noted, the speech in question seems rather clearly to relate to matters of public concern.       

Should the court reverse the Fourth Circuit and allow the tort judgment to stand,  public protesters might be deterred from conveying offensive messages in other contexts.  Abortion clinic protesters, speakers demonstrating near churches, and others might well find themselves subject to civil liability under ordinary tort liability rules.  The First Amendment generally requires public audiences to tolerate even reprehensible messages, so long as speakers do not cross the line into threats, or incitement, or other illegal content.  Some protected content will be "extreme and outrageous," the standard under the intentional infliction of emotional distress tort (I'll leave aside the "intrusion" claim).  But as the Court noted in Hustler v. Falwell, that standard is too subjective and gives juries too much power to determine the propriety of speech.            

States, localities, and the federal government have all sought to displace the Westboro protesters through time, place and manner regulations.  Some of those measures have been invalidated.  Some, in my view, were blatantly content-discriminatory.  All were obviously enacted to deal with the only group, to my knowledge, that has ever protested near cemeteries.  No one, other than the speakers themselves, would defend the substance of the message here.  But to impose civil damages for speech conveyed in a public place where the speakers had a right to be would create a very dangerous precedent for public speech and contention. 

And for those wishing to silence the Phelps's on the ground that their speech is hateful or offends the Snyders' dignity, I would ask whether they are generally prepared to adopt the more European constitutional tradition of placing personal dignity above speaker autonomy.            

Bangkok Blood

As I noted in an earlier post, protesters in Bangkok planned to dump their blood near the Orime Minister's office as a symbol of their dissatisfaction with the current leadership.  As reported here, they did so.  A security guard fainted.  Whether this method of protest will have any other effect is uncertain.

Tuesday, March 16, 2010

Iranian Executions

According to this report in the New York Times, Iran plans to execute six people who participated in this summer's street protests. The executions come just before the Feast of Fire celebration, which the opposition planned to use as a protest event. 

In a further effort to deter the opposition, Iranian authorities have continued hold pro-government demonstrations:

On Sunday, in another gesture that appeared intended to intimidate the opposition, a crowd of about 50 people who support the government chanted and threw red and green paint at the Tehran apartment building of an opposition leader, Mehdi Karroubi, according to an interview with Mr. Karroubi’s wife posted on Sahamnews, Mr. Karroubi’s Web site.
It was the second pro-government demonstration at the home of Mr. Karroubi, an outspoken government critic and one of the candidates in the disputed June election.


Monday, March 15, 2010

The Red Shirts

More than 100,000 protesters have taken to the streets in Bangkok in an effort to force the Thai leadership to resign.  Check out this video from


And from the New York Times report:

The relatively high turnout by protesters, who call themselves the Red Shirts, has underlined divisions in Thailand between the rural poor and the Bangkok establishment as well as the enduring popularity of the billionaire tycoon, Thaksin Shinawatra, who was ousted as prime minister in a 2006 military coup.

The strategy of the Red Shirts appears to be to disrupt the functioning of government for as long as possible in the hope that the prime minister blinks.

“It’s a game of chicken,” said Gothom Arya, director of research at Mahidol University in Bangkok. “They are saying, ‘We will bring you to the edge and see who falls first.’ ”

Prime Minister Abhisit had said that he would not agree to the protesters’ demand that he dissolve Parliament but said Monday that he was open to compromise.
It is not clear whether the protesters, who are mostly poor farmers, will have the resources to stage a long, drawn out protest.  But they appear to have invented a new repertoire of contention:
On Monday, the Red Shirts announced a new tactic in their quest to unseat the government, a plan to collect blood from protesters and splash it outside the prime minister’s office.

Monday, March 8, 2010

Military Funeral Protest Case Goes to High Court

Today the Supreme Court agreed to hear a case involving a tort suit arising out of protest activities by the Westboro Baptist Church.  That group, which consists of members of a single family, has protested military funerals across the country.  Their "argument" is that God is punishing America for its supposed tolerance toward homosexuals by killing its soldiers.  The Church's activities have given rise to local, state, and federal laws limiting protests near funerals.  The case under review involves the First Amendment implications of civil liability imposed for these protest activities.

The case is Snyder v. Phelps, No. 09-751. The question presented:  Does the First Amendment preclude a lawsuit alleging invasion of privacy by intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy, filed by a father whose son, an enlisted Marine, died in the line of duty in Iraq, against a pastor and several of his congregation's members, based on a protest they conducted near the son's funeral and an Internet posting several weeks after the funeral specifically targeting the decedent and his parents?

I will have more to say about Snyder v. Phelps later.

Saturday, March 6, 2010

The New Right

I have not said much about the Tea Party protesters, who are perhaps the most visible group engaging in regular public contention and public speech.  They were first visible at those infamous health care town halls.  Tea Party protests have continued, sometimes drawing very respectable numbers.  The demonstrations have been peaceful, and mostly unhindered by security forces.  The protesters themselves have the same sort of viewpoint diversity and, frankly, wackiness that other large public movements often exhibit.

David Brooks recently compared the Tea Party Protesters to the New Left.  In this op-ed, he calls them "Wal-Mart Hippies."  Brooks notes that the Tea Partiers are different in many ways from the New Left participants and leaders.  But he writes:
[T]he similarities are more striking than the differences. To start with, the Tea Partiers have adopted the tactics of the New Left. They go in for street theater, mass rallies, marches and extreme statements that are designed to shock polite society out of its stupor. This mimicry is no accident. Dick Armey, one of the spokesmen for the Tea Party movement, recently praised the methods of Saul Alinsky, the leading tactician of the New Left.
That the New Right is borrowing repertoires from previous protest groups is no surprise.  Repertoires like rallies and protests, as social scientists have observed, are modular.  You can see this clearly on college campuses today, where many students with conservative causes engage in the same sort of public contention Vietnam protesters and civil rights activists did before them.

The reliance on these seemingly dated repertoires may seem surprising.  One might attribute it to the age of the Tea Party members, who seem not to be drawn from younger generations.  But that would fail to explain why protests, rallies, and sit-ins continue at college campuses today. 

Like all other movements, the Tea Party needs public exposure.  It needs physical and tangible exposure of the sort that attracts media attention.  They would ecertainly exist on the Web, and surely use it for effective organizations.  But Tea Partiers would not exist in the public eye if they relied solely on Facebook or Twitter.  The traditional public square is where movements begin, even in the digital age.  Public protests provide more than media exposure and the chance to reach target audiences (public officials, fellow citizens, fellow movement members).  The  protests are cathartic moments; they are acts of solidarity.  They glue the organization together. 

So the Tea Party is a fascinating case study of what may be a 21st Century social movement -- one relying, as Brooks says, on mid-20th Century tactics.    


Friday, March 5, 2010

More on California Education Protests

Here.  Students and faculty continue to protest cuts to the state's education budget.  Some have tried to block entrances to school buildings, and a few have been arrested.  But the proests appear to have been peaceful to this point.  As the report indicates, the protests have spread beyond university campuses to elementary and other lower-level institutions. 

Thursday, March 4, 2010

Wednesday, March 3, 2010

Feeding the Homeless in Public Places

As discussed in this report, religious groups have been challening zoning and other laws that limit their ability to feed and otherwise minister to the homeless in public parks and other places.  Although in the reported case the church relies upon  religious liberties, these challenges have sometimes included free speech claims as well.

Generally, courts have allowed municipalities to apply permit requirements and other time, place, and manner restrictions to public ministries.  Some of the no-feeding laws may be vulnerable to vagueness challenges.  Anti-feeding ordinances are a relatively recent phenomenon.  They are part of the larger effort to control activities in public places in pursuit of local aesthetic and purported public safety interests.  As in any such conflict, the neighbors want peace, tranquility, and security and the activists want to reach their audience where it is most likely to be found.