Places of Higher Learning and Order Management

As I discuss in Chapter 8 of my book, college campuses are generally subject to the same sort of order management system that applies outside their gates.  The campus order management system includes sometimes detailed requirements for permits, insurance, security fees, and free speech zoning.  Several such provisions are in effect on the campus of Southeastern Louisiana University.

Yesterday, in Sonnier v. Crane, the Fifth Circuit reversed district court's denial of a preliminary injunction prohibiting enforcement of the provision allowing administrators to charge a security fee if they felt this was warranted.  That sort of unbridled discretion with respect to fees has been invalidated by the Supreme Court, making this determination an easy one.  Plaintiff is a Christian preacher who sought to stand in a pedestrian mall on SLU’s campus along with a handful of friends, holding a sign, and tried to start conversations about religion with individuals who passed by.

Despite this partial victory, the Court upheld a 7-day notice requirement, a provision allowing officials to collect detailed personal information about prospective speakers, a provision limiting speakers to two hours once a week, and a free speech zone policy limiting speech to three areas on campus.  Essentially, the court deferred to the university with regard to its needs to pursue its educational missions, maintain order, and ensure safety on campus.  The requirements applicable outside the campus gates have now entered; but the rigor applied to them inside is much less, at least in this case, than one would find on the outside.  The 7-day advance notice requirement is particularly problematic.  If enforced, it would seem to prevent students from mounting spontaneous displays.   

Phelps-Roper Nebraska Settlement

Shirley Phelps-Roper, of Westboro Baptist Church notoriety (the group that protests near military funerals, among other things) has received a $17,000 settlement from an Omaha suburb in connection with a challenge to the town's scheme for granting permits for public expression.  The Phelps-Ropers have been successful in challenging other limits on public contention, including flag desecration laws and laws regulating their funeral protests. 

Most notably, they  have a First Amendment challenge pending before the Supreme Court relating to the imposition of civil tort liability in connection with one of their funeral protests.  I joined an amicus brief filed with the Court in which several academics urged the Court not to let the verdict stand.  In brief, the impositon of liability for "extreme and outrageous" speech (the standard under the intentional infliction of emotional distress tort) poses serious dangers to speech in public places, including on college campuses and in traditional public forums like parks and streets.  We urge the Court to at the very least impose First Amendment limitations on the imposition of such liability.

Public Prayer Outside Supreme Court Halted

Foxnews.com has the story here.

Mosque Protest

I suspect we will see an increase in public contention surrounding the siting and building of mosques in the U.S.  Here is one example of a peaceful demonstration and counter-demonstration relating to this issue.

Feeding the Homeless in Public

The Eleventh Circuit has upheld an ordinance that tightly restricts the act of assembling in city parks to feed the homeless.  The case is First Vagabonds Church of God v. City of Orlando.

The Orlando ordinance was challenged on both religious free exercise and free speech grounds.  Under the Free Speech Clause, symbolic conduct is covered where the actor has an intent to convey a message and an audience is reasonably likely to understand that a message is being conveyed.  The message does not have to be clear, articulate, or even coherent.  As the court said, “in determining whether conduct is expressive, we ask whether the reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir. 2004). "This inquiry is an objective one."

The court concluded that feeding the homeless in the public parks did not satisfy this standard:

We accept that [plaintiffs] had the requisite expressive intent, but we believe that the feedings in this case present at most an ambiguous situation to an objective reasonable observer; the expressive nature of the conduct is not “overwhelmingly apparent.” We therefore cannot conclude that the likelihood is great that a reasonable observer would understand OFNB’s conduct of simply feeding people to be truly communicative.

There was some evidence in the record that police, the mayor, and others recognized that the church was feeding the homeless at least in part to make a political point -- i.e., that society has an obligation to feed its homeless and hungry.  Moreover, the Supreme Court has (albeit sometimes grudingly) accepted that a wide variety of conduct "counts" as expressive -- including flag burning, cross burning, stripping, and sleeping overnight on the National Mall.  While it is true that there must be limits to the principle that conduct may be perceived and treated as expressive activity, under the circumstances it seems a reasonable observer could well have discerned a political, social and religious message.  Although the court did not hold that feeding the homeless in public could never be deemed expressive, the tenor and holding of its decision create an important precedent for limiting public feeding as a form of political demonstration.    

By the way, the court's limited notion of what "counts" as expressive conduct stands in contrast to and in tension with the courts' increasing willingness to accept that "government speech" is present in public forums even when it is far from clear that a reasonable observer would perceive some "overwhelmingly apparent" message.  The display of a Ten Commandments monument (along with other works) in a municipal park comes to mind.  (See Pleasant Grove City v. Summum (2010).  Is the government speaker required to make the same showing as a private speaker that its message is (a) intended and (b) likely to be understood by a reasonable observer?  

Spying on University Activists

Infiltration of protest groups is nothing new.  But this story concerning University of Washington police officers conducting covert surveillance of student activists struck me as unusual.  From the story:

The school's Student Worker Coalition first learned that it had been infiltrated in April, when members saw one of the group's new adherents at her day job — as a uniformed University of Washington policewoman. At the time, the group had been planning a campus demonstration in support of custodial workers facing the prospect of having their night shift cut.

The ACLU of Washington released e-mails obtained through public-records requests that also showed that the officer, Tani Van Leuven, actively participated in an April 8 meeting and secretly monitored a meeting at a cafe a week earlier.

Protesters do not get very far under the First Amendment by arguing that surveillance of public events chills their free speech and assembly rights.  The Supreme Court rejected that  argument in Laird v. Tatum (1972).  Nevertheless, spying on college students who are engaged in planning a protest event is inconsistent with the commitment to free debate that most universities espouse.  As I point out in the book, elements of protest policing outside campus gates have steadily crept inside these unique spaces.  It's troubling that this tactic has now appeared on campus, where students may be particularly susceptible to intimidation by police.  University of Washington officials ought to condemn and strongly discourage this sort of spying on students.  




     

Panhandling Ban at LAX Upheld

The Ninth Circuit has issued a decision lifting an injunction barring enforcement of a panhandling ban at Los Angeles International Airport.  The decision, ISKCON v. Los Angeles, is based on an interpretation of California law by the California Supreme Court.  That court held that regardless of whether LAX is a public forum, the panhandling ban is a reasonable time, place and manner regulation.  That holding is consistent with Supreme Court precedents that limit face-to-face requests for funding in public places, but allow distribution of literature and other activities that do not carry the same purported risk of fraud.

USNWR Opinion Piece on Snyder v. Phelps

U.S. News & World Report Weekly has published my brief opinion piece on the Synder v. Phelps "funeral protest" case.  You can access the piece here.  The feature is called "Two Takes."  I argue that the tort liability imposed on the Phelps family for protesting near the private funeral of a soldier is inconsistent with the First Amendment.  Walter Dellinger, former acting Solicitor General, argues that the protesters have no First Amendment right to "hijack" a private funeral.

May Day Compensation

As reported here, Los Angeles has agreed to pay $500,000 to six journalists who were injured in the melee at MacArthur Park during the May Day celebration in 2007. That amount is a drop in the bucket compared to the total compensation paid as a result of police misconduct.  As the story reports:

The city paid out $13 million to settle nine lawsuits involving nearly 300 people after the rally at MacArthur Park. Police dispersed crowds by beating people with batons and firing beanbag rounds and rubber bullets. Forty-two people were injured.

There were plenty of cameras on hand to capture events.  (Here is one video.)  It was astounding to watch police march into peaceful crowds firing rubber bullets and engaging in other violent acts.  After-event reports by the City of Los Angeles and the LAPD conceded that there had been several errors, including a lack of officer training and the resort to physical violence to control the crowds.