Speech Out of Doors

Occupy DC

2012-01-26T20:08:00.000-05:00

On Tuesday, January 24, I testified at a congressional hearing on the Occupy DC protest in McPherson Square in the District of Columbia. I was invited by the committee on behalf of the democratic minority members, who wanted to have a First Amendment scholar address the importance of public protest in public places and the Park Service's enforcement of its regulations concerning public demonstrations. It was a really interesting experience and a very substantive discussion, for the most part, about the limits of public protest. You can watch the video here.

Rahm Emanuel and NATO/G-8 Militarization

2012-01-17T21:34:00.001-05:00

It never fails. The G8 or some similar international summit comes to town and local officials invoke something akin to martial law. They call out massive officer brigades, engage in surveillance and covert acts, and cordon off public spaces where protest is permitted so that attendees can be kept safe from the rabble. Now came Mayor Rahm Emanuel, who proposed to do this and more during the NATO/G8 summit scheduled for May in Chicago. Here is how the Huffington Post described the Mayor's proposed ordinance, which some Occupy protesters have dubbed the "Sit Down and Shut Up" ordinance:

In December, Emanuel announced that the fine for resisting a police officer would be doubled from its current range of $25 to $500 to $200 to $1,000. The mayor's ordinance also restricted the hours of public parks, playgrounds and beaches in accordance with the Chicago Park District's hours of operation. A second ordinance applying to the protests also, among other changes, requires organizers to provide a parade marshal of their own for every 100 demonstration participants.

The oringinal proposal also limited the time periods for protest and the use of bullhorns. Today, in the face of protests from protesters and aldermen (among others), Emanuel backed off the increased fines provision. He had previously relented regarding some of the other resrtictions.

However, the proposal still calls for an increased number of surveillance cameras; closing of parks and beaches until 6 a.m.; parade restrictions and higher fees for parades and protests. The police supt. is also empowered to “deputize” out-of-state law enforcement personnel experienced in handling civil unrest. If the past is a reliable guide (and I'm betting it is), these and other measures will lead to substantial limits on public protest, many lawsuits, and settlement liability imposed on the City of Chicago.

This is not the 1968 DNC. It's too bad we have progressed so little in terms of how we often characterize, and how officials treat, lawful protest activity. Before the first parade has hit the streets, the Mayor is seeking emergency powers and police are preparing to do battle with boots on the ground. It's true that mass protests come with some threat to public safety. So do state fairs, holiday parades, and large conventions. But the act of public protest is not itself a threat. Chicago officials would do well to keep that in mind as they prepare for May.

The "Occupy _____" Moment/Movement

2012-01-17T21:07:00.000-05:00

I've been working on a second book project, and not regularly posting here. I did a guest stint at Concurring Opinions in September and October, during which I posted several things about the "Occupy" protests. You can check those out here.

The Occupations have mostly been shut out of public parks and plazas. But protesters have found new places to occupy and contest, including the U.S. Capitol. Whatever the future of this moment of discontent, it is clear that the occupiers have moved income inequality to the fore of the national debate. And they did this by moving into and literally commandeering public spaces. I suspect that even in the digital era, this will not be the last protest movement to rely on the streets and parks to spark a national debate.

Ninth Circuit Invalidates Redondo Beach Anti-Solicitation Ordinance

2011-09-21T12:42:00.001-04:00

The Ordinance States:

(a) It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle. For purposes of this section, "street or highway" shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.

(b) It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons.

The Ninth Circuit held that the ordinance, which was enacted to regulate the solicitation activities of "day laborers," was not narrowly tailored to the City's interests in traffic safety and flow. In explaining the measure's breadth, the court observed:

The case is Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (9th Cir., Sept. 16, 2011).

The Ordinance technically appl[ies] to children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk outside of their school and would prohibit signbearers on sidewalks seeking patronage or offering handbills even though their conduct does not pose a traffic hazard, as well as prohibit sidewalk food vendors from advertising their wares to passing motorists. The Ordinance applies to a motorist who stops, on a residential street, to inquire whether a neighbor's teen-age daughter or son would be interested in performing yard work or babysitting. (citations and quotations omitted)

Phoenix Panhandling Law Invalidated

2011-09-17T10:03:00.000-04:00

The Arizona Court of Appeals has invalidated a Phoenix ordinance that banned panhandling at night. The court, applying intermediate scrutiny, held that the ordinance was not narrowly tailored owing to the fact that it banned peaceful, non-threatening forms of solicitation. It rejected Phoenix's argument that the government could protect people on the public sidelwaks and streets from unwanted and uncomfortable encounters.

“Our constitution does not permit government to restrict speech in a public forum merely because the speech may make listeners uncomfortable,” the appeals court wrote. “The First Amendment does not allow the City to restrict speech in a public forum merely because listeners might prefer not to hear a message that may annoy them or make them uneasy.”

The Network and Public Protest

2011-08-17T16:14:00.001-04:00

In public protests around the world, governments have taken steps to deny or interefe with protesters' access to the Internet and to cellular service. Such access has been critical in terms of facilitating the organization of public protests against repressive regimes. Cut off the network, and you may prevent or at least weaken the protest. Interference with network access also limits the ability of protesters to transmit information about what is happening on the ground.

I wouldn't call San Francisco's BART, a public transportation agency, a repressive regime. However, the agency recently cut off cell service in the subway system in advance of a planned protest. Protesters had indicated that they would use social networking services to coordinate their protest and to report on the number and location of police.

I tend to agree with Eugene Volokh's conclusion that BART's temporary restriction is constitutional under current First Amendment doctrine. In so-called nonpublic forums, government can restrict speech based on its content so long as the restriction is both viewpoint neutral and reasonable. The restriction here is clearly viewpoint-neutral. But is it reasonable? Arguably so, since a significant protest might have interfered with BART service and disrupted travel in the system. Under current public forum doctrine, that's probably sufficient to uphold the restriction.

But where does that logic lead? Might it result in similar restrictions being upheld in public areas that are designated for speech activity? Is the service interruption really so different from barricades, fences, and other physical restrictions that limit or in some cases prevent effective communication? All of these things interfere with, but do not entirely prevent, public speech. A service interruption makes it more difficult to organize a protest. But so do police surveillance, protest zones, permit applications, etc. Perhaps, as Volokh suggests, the distinction lies in the content-based nature of the service interruption. That was clear in the BART case; but it might not be conceded in others. Or is a service interruption a presumptively unconstitutional prior restraint on speech? Courts may ultimately have to address this issue, as authorities seek new means of regulating protests in networked public places.

Oakland's "Bubble Ordinance" Invalidated As Applied to Sidewalk Counselor

2011-08-03T13:06:00.000-04:00

In Hoye II v. City of Oakland (9th Cir. 2011), the court invalidated Oakland's "bubble" ordinance, as applied to an abortion clinic sidewalk counselor. I especially liked this opening passage:

Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert. These instances of public persuasion constitute the lifeblood of a self-governing people's liberty, and so even when the beliefs propagated seem to some the “rankest error” that “naturally would offend” any listener, our founding charter deems such encounters “in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Cantwell v. Connecticut, 310 U.S. 296, 309–310 (1940). This case calls on us to apply that principle.

As the court indicated, the main problem with the enforcement of this ordinance, which restricts counseling and other forms of speech within the personal space of abortion clinic patients, was that authorities did not apply it even-handedly to counselors who encouraged women to utilize the facilities. The record indicated that only sidewalk counselors who sought to convince women not to obtain an abortion were arrested and prosecuted under the ordinance. I suspect this is typically the case -- i.e., a bubble ordinance is couched in neutral terms, but applied only to those who are near the abortion clinic to protest its activities and to discourage women from obtaining and abortion.

Eugene Volokh has more on the decision here.

Dearborn Leafletting Ruling

2011-05-27T11:16:00.000-04:00

A federal appeals court has ruled (2-1) that a decision by Dearborn, MI officials to limit evangelists to a booth rather than surrounding sidewalks during the city's annual Arab-American festival violated the First Amendment speech rights of the leafletters.

Snyder v. Phelps

2011-03-02T21:55:00.000-05:00

There have obviously been a lot of public protest activities of note recently (Egypt and other global hot spots, the protests in Madison, Wisconsin). Today the Supreme Court handed down its decision in Snyder v. Phelps, the case involving the funeral protests by the Westboro Baptist Church. The case garnered lots of media attention, in part owing to the sympethetic plaintiffs and the incendiary speech of the Phelps family, who comprise the Westboro Baptist Church. The Court held, 8-1, that the civil verdict against the WBC for intentional infliction of emotional distress and "intrustion upon seclusion" could not stand. The majority concluded that the WBC's speech was on "a matter of public concern" and thus entitled to full First Amendment protection. It was also significant that WBC's members were speaking on a public sidewalk, or "public forum," where they had a right to be. Justice Alito argued in dissent that since Mr. Phelps, the father of the fallen Marine, was a private figure, full protection ought not to apply to the WBC's speech. He likened their expression to a verbal assault that inflicted psychological injury, and disagreed with the majority that civil liability could not attach to such expression.

The decision is a strong re-affirmation of some very basic First Amendment principles. Public speech in a public forum on matters of public concern is granted special protection under the First Amendment. Moreover, the hatefulness or offensiveness of spech is not a proper ground for regulating or suppressing it. Under the intentional infliction theory pursued in the case, "outrageousness" is the core standard for determining whether a statement is tortious. The Court rightly rejected that as a standard for jury application, on the ground that it invites subjective judgments regarding the content of expression. In traditional public forums, as well as newer cyber-forums, speech is often heated, hateful, and offensive. (The Court dodged regulation of "outrageous" speech on the Internet by concluding that a Web posting by WBC was not properly made part of the plaintiff's case on appeal.) Indeed, that is often the point. So, too, do speakers frequently use public places to amplify or publicize their messages -- as the WBC has done with what can only be characterized as substantial success. The Court granted protection to this contestation of place (within the limits of reasonable, content-neutral, time, place and manner regulations). In sum, although many will no doubt share Justice Alito's aversion to the speech in question and WBC's tactics, Snyder v. Phelps is a very significant victory for public speech and contention.

Arizona Funeral Protest Law

2011-01-12T21:57:00.000-05:00

The Arizona legislature has quickly enacted limits on protests near funerals. The law was passed in anticipation of protests at the funerals of some of the victims in the recent Tucson shooting. It is apparently modeled on an Ohio measure that was upheld by the Sixth Circuit.

CUNY's Culture of Protest

2010-12-20T17:48:00.001-05:00

This article from the N.Y. Times highlights some of the challenges student protesters face today, from increased campus security to harsher penalties for various forms of civil disobedience on campus. The author compares the relatively modest student response at CUNY to tuition increases to the recent protests in the U.K. regarding rising education fees. The students at CUNY have tried public contention in years past. They've now apparently moved on to forms of protest they think might be more effective -- specifically, legal process. In a sense, this simply represents the steady institutionalization of protest. What began "in the streets" ends up in negotiations with administrators and, when all else fails, in the courts. I have seen too many examples, some quite recent, of robust student protest to conclude that the campus protest is a thing of the past. There are still idealistic students on the nation's campuses. But for a variety of reasons, some of which are examined in the piece, campus protests are not as a general matter likely to be as frequent or as effective as they used to be.

This is an important change in the nation's expressive culture. Whatever one might think of the efficacy or desirability of protests as a general matter, we ought to be concerned that a generation of students may be learning the lesson that public contention is a dangerous and wholly ineffectual form of expression. If during these formative years students do not learn to test the bounds of authority, through various means, when if ever will they learn to do so?

"Kettling"

2010-12-06T09:11:00.000-05:00

I posted something earlier about the austerity protests in Britain and France. As this article shows, my and others' sense that the British would simply accept social welfare cuts with a "stiff upper lip" failed to consider the student population. British students have indeed taken to the streets in considerable numbers to protest rising tuition and education cuts. Police officers have been playing a cat-and-mouse game with the protesters. In some cases, they have herded the students into pens. This strategy of containment has been referred to as "kettling," a term I had not heard before. Students have responded to kettling by engaging in less centralized assemblies, and by using social networks to evade police spatial tactics.

Arresting Reporters at Demonstrations

2010-11-30T14:48:00.000-05:00

Here is some very cogent commentary on this issue, from the First Amendment Center. When authorities militarize public places during protests and demonstrations, they tend to cast a wide net. Reporters and other law-abiding people are sometimes swept into those nets. Some of the examples cited in the commentary involve the recent protest at Fort Benning, which is discussed below.

Fort Benning Protest

2010-11-22T16:42:00.002-05:00

The N.Y. Times published this interesting article today, about the annual demonstration at Fort Benning in Columbus, Georgia. Protesters have been gathering there for years to protest the training of Latin American military officers at the school of the Americas, which is affiliated with the Department of Defense. The article reports on the dwindling number of protesters, and some possible reasons for the decrease in activity. These include the bad economy, the apathy of young people, and the school's own efforts to engage the public and to draw attention away from the instruction they are providing. Also among the likely reasons for the decline: A more aggressive police response to protesters, and the imposition of jail terms for some of those who trespassed on the base. Recently, a small group of protesters tried to draw attention to their cause by demonstrating in the public streets. They were arrested, as were several other protesters who apparently failed to follow police instructions following a parade. The Fort Benning story highlights many of the challenges faced by modern protesters. Only some of these relate to protest policing. What was perhaps most surprising to me was the longevity of the Fort Benning demonstrations. Public contention of this sort requires no small commitment, and some traveled long distances to be a part of this event.

LA Street Performers Get A Reprieve

2010-11-20T13:32:00.001-05:00

As reported here, Batman, Zorro, and other characters remain free to perform on Hollywood Blvd. Police had increased patrols and arrests, apparently in reponse to complaints of aggressive panhandling and other behavior by some of the performers.

Residential Picketing and True Threats

2010-11-10T10:00:00.001-05:00

As this report indicates, North Carolina authorities have charged an abortion protester with violating a new state law against targeted residential picketing. The Supreme Court upheld a residential picketing ordinance that prohibited the targeting picketing of a residence. In this case, the protesters distributed "Wanted" posters in the neighborhoods of abortion providers. The state has characterized this as stalking and threatening conduct. In the "Nuremberg Files" case, the Ninth Circuit upheld a civil verdict against abortion protesters for posting similar posters to the Web. In that case, the appearance of "Wanted" posters had been followed by the murders of abortion providers. The Ninth Circuit held that the posters constituted "true threats," which are unprotected speech. It will be interesting to see whether the North Carolina targeted picketing statute, as applied to the abortion protesters, withstands scrutiny under the First Amendment.

Street Preacher Victory

2010-11-10T09:29:00.001-05:00

As reported here, a man who took to the streets of Greenville, SC to preach against homosexuality has won his case on appeal. The South Carolina Supreme Court found that a portion of the ordinance under which the preacher was arrested, which prohibited making comments that are "humiliating, offensive, scary or obscene," is unconstitutionally vague.

Moscow Protest as Microcosm

2010-11-01T08:54:00.000-04:00

This story in the N.Y. Times, which reports on a small public protest in Moscow, demonstrates both the importance of public contention to speakers and the threat such assemblies can pose to authorities. The right of assembly is guaranteed in the Russian constitution. But this is a mere parchment guarantee. Protesters are routinely arrested and dealt with harshly by authorities:

In the past year, Russia’s leaders have been forced to discuss this group of protesters regularly. In an interview with the newspaper Kommersant in August, Prime Minister Vladimir V. Putin said that if they gathered without sanction, “They will be bashed on the head with a club,” and that a softer government position would only embolden them.

“If the objective is forcing concessions on the powers that be, and if the powers that be do buckle under, then provocations will be endless,” he said. “They will be staged again and again.”

But times may be changing. At least so long as the protests remain relatively small and non-violent, the authorities may be willing to permit some public contention:

But in mid-October, Vladislav Surkov, the deputy director of the presidential administration, said he saw little threat in allowing the event, remarking that the regular confrontations had become “a sort of burlesque.”

“If in Moscow, a city of many millions, 200 people want to gather exactly on the 31st, exactly on Triumphal Square, in these modest numbers, let them gather,” he said in an interview. “I am sure the new mayor will make the right decision. And it will be a decision in the spirit of the president’s policies.”

The French, the British, and Public Contention

2010-10-25T09:30:00.002-04:00

Here is an interesting piece from the N.Y. Times comparing the response of French and British citizens to austerity measures in those countries. Not surprisingly, the French have taken to the streets more regularly and in greater numbers than the British.

Certiorari Denial in 2005 Bumper Sticker Ejection Case

2010-10-13T09:14:00.000-04:00

Over three dissents, the Supreme Court has denied cert. in a case involving the ejection of two people from a 2005 public event featuring George W. Bush. The ejection was apparently based solely on the subject matter of the bumper sticker on their car. The N.Y. Times has the story. The central legal issue in the case is whether the officials who ejected the two are entitled to qualified immunity on the ground that no "clearly established" principle of First Amendment law was violated.

Viewpoint-Based Exclusion from Non-Exclusive Event

2010-10-04T21:14:00.000-04:00

Eugene Volokh has this interesting post on a case involving the exclusion of certain students from a non-exclusive Maria Cantwell event on the campus of Bellevue University. The basic principle is that once the university opened a non-exclusive forum for speech, it could not then exclude certain students based upon their anti-Cantwell viewpoint.

The First National Pilgrimage to D.C.

2010-10-03T11:46:00.000-04:00

The Sunday New York Times has a brief but interesting piece on the first national march on Washington, in 1894. The article notes that the protesters were arrested for stepping on the Capitol grass -- a charge the author notes would be "preposterous" today. Maybe not. Concerns about aesthtics have led to proposals to limit protests on the Mall as well as actual limits in places like Central Park. To be sure, protests are still allowed in such places. But in some cases courts and officials have preferenced blades of grass over actual protesters. The piece notes how little has actually changed over time with respect to national pilgrimages to D.C.

Here is an excerpt:

Marching in 2010 and marching in 1894 are, of course, two different experiences.

On May 1, 1894, Coxey and somewhere between 500 and 1,000 marchers rambled along Pennsylvania Avenue toward the Capitol. Thousands lined the streets to watch. These days, the only people who watch for any length of time are reporters and cops.

And yet, Coxey’s march foreshadowed many of the same logistical and tactical issues that today’s protest organizers face. Even Coxey’s message points to those of modern marches. One of the platforms of the rally in Washington on Saturday, which was sponsored by liberal groups, called for increased infrastructure spending to create jobs.

Newspapers covered virtually every step of Coxey’s journey from Ohio to Washington. Mr. Coxey and his aides stressed their Christian roots, while reporters described them as tramps and cranks. Politicians and the press seemed to have one primary concern: How many will march? Organizers today continue to be frustrated that their larger message gets lost amid the focus on crowd size, and Coxey was perhaps the first march leader to use a wildly optimistic number — he predicted 10,000 to 500,000 demonstrators — to generate publicity.

Liberal Groups Rally on the National Mall

2010-10-03T09:26:00.000-04:00

Story here. There have been proposals for more monuments and for confining protests on the Mall to some sort of protest zone. I think the recent gatherings on the Mall demonstrate the wisdom of keeping the Mall open to large-scale political and other demonstrations. The assemblies may not change minds, policies or electoral results. But they offer an opportunity for people to assemble in solidarity for large causes and to express hope, frustration, faith, and preferences.

Surveillance of Activists -- Reprise

2010-09-27T15:20:00.000-04:00

I noted in an earlier post that a recently published FBI report essentially exonerates agency personnel of charges that they targeted protesters for surveillance based upon political advocacy. This potentially disturbing (and related) story shows how federal laws limiting the provision of "material support" to terrorists and terrorist organizations may be used against domestic anti-war and other acativists. A taste from the story:

FBI agents in Chicago took a laptop and documents from the home of a Palestinian-American anti-war activist in an attempt to silence his advocacy, an attorney said yesterday.

The FBI on Sept. 24 searched eight addresses in Minneapolis and Chicago, including the home of Hatem Abudayyeh, who is the executive director of the Arab American Action Network, attorney Jim Fennerty told the Associated Press.

“The government’s trying to quiet activists,” Fennerty said. “This case is really scary.”

More than half a dozen agents went to Abudayyeh’s home on Sept. 24 and took any documents containing the word “Palestine,” Fennerty said.

Another Rally on the National Mall

2010-09-27T09:07:00.000-04:00

No, not by Jon Stewart or Stephen Colbert. It's a coalition of liberal and progressive groups who hope to communicate a message of solidarity rather than division in times of economic distress -- and to make the case that they, rather than teh Tea Party, are the "real" embattled middle class. The rally is called "One Nation Working Together." It is scheduled for October 2. The N.Y. Times has the story here.

Student Immigration Protests

2010-09-27T09:01:00.000-04:00

Here is an interesting repertoire of public protest, in support of an immigration bill that would open a path to legal status for students unlawfully in the U.S.

FBI Report on Domestic Surveillance of Protest Groups

2010-09-27T08:59:00.000-04:00

As reported by the N.Y. Times, an FBI report has cleared agents and officials of targeting anti-war and other protesters for surveillance based upon their political advocacy. Still, the report "criticized the F.B.I. for classifying certain nonviolent crimes related to protest activities as terrorism. And it sharply attacked the bureau for making a series of 'false and misleading statements to the public and to Congress” about its surveillance of an antiwar protest on Nov. 29, 2002.'" In addition, the report "criticized several episodes in which it characterized F.B.I. agents as opening or continuing investigations despite scant evidence of a federal crime." It also "criticized classifying some nonviolent protest-related actions, like trespassing on a military base, as 'terrorism” matters.'"

U.N. Rallies

2010-09-27T08:52:00.002-04:00

Here is a report from the N.Y. Times on recent rallies held near the United Nations.

G20 Summit Protest Lawsuit

2010-09-22T16:29:00.000-04:00

According to this report, the ACLU has filed a lawsuit alleging that police violated the civil rights of protesters at the G20 meetings in Pittsburgh. Such lawsuits are commonly filed after large-scale protest events. In many cases, municipalities have paid substantial settlements. From the story:

The ACLU announced the lawsuit, Armstrong v. City of Pittsburgh, at a plaza near the University of Pittsburgh campus where the protest was staged on Sept. 25, 2009.

"When people see video of peaceful demonstrations in places like Russia and Iran where the police all of a sudden declare the assembly to be unlawful and then come in and arrest everybody ... we recoil in horror and say, 'It's just free speech, it's just peaceful demonstrations. Thank goodness that can't and doesn't happen in this country,'" Walczak [ACLU legal director in Pennsylvania] said.

"Well, I'm sorry to advise you that in fact it does happen in this country and it did happen in the city of Pittsburgh."

Stewart and Colbert Rallies

2010-09-18T09:30:00.000-04:00

Here is a story about John Stewart's proposed "rally for sanity" and Colbert's planned "counter-demonstration" to "keep fear alive." I'm not sure how I feel about mocking public rallies and demonstrations (although it's not entirely clear this is the intention). But it is true that those who tend to protest in public often represent small, deeply engaged segments of the public. I wonder, all joking aside, whether a large crowd of busy, less energized folks will turn out for a rally on the Mall. For fans of Stewart and Colbert, anything seems possible . . .

Anti-Quran-Burning Protests Planned

2010-09-08T10:04:00.001-04:00

Story here. Apparently, local officials have denied a Florida pastor a permit to have a Koran bonfire on church property. But as the story notes, smaller fires may be permitted. Officials cannot stop the planned burning on the ground that it might offend others, either in the U.S. or abroad. It does not appear that Pastor Jones intends to threaten others by engaging in this expressive conduct. The act of burning does not constitute "fighting words." And the pastor does not appear to have the intent to incite others to commit violent acts -- although they may well be the effect of his speech. Federal officials, including Defense Secretary Gates and President Obama, have spoken out against the proposed Quran burning. Government officials can certaintly seek to dissuade a citizen from speaking. But they cannot punish or threaten to punish him for doing so. The best response to this hateful speech is not to punish the speaker, but to rely upon counter-speech advocating tolerance for religious beliefs and respect for religious texts and symbols.

Obama Protester Arrested at Alaska State Fair

2010-08-30T19:53:00.000-04:00

Story here. Video here.

Empire State Building Protest

2010-08-27T09:07:00.000-04:00

While New Yorkers have been drawn into an increasingly vehement debate over an Islamic center and mosque planned near ground zero, another religious squabble has been simmering. And on Thursday, that battle will culminate at the Empire State Building.

There, protesters are planning to rally against a decision by the building’s owners not to light the upper floors in blue and white on Thursday night in honor of the 100th birthday of Mother Teresa.

The Police Department and the rally’s organizers, preparing for several thousand demonstrators, are planning to shut down 34th Street between Fifth Avenue and Avenue of the Americas, where the main entrance to the building is located, at the peak of the evening rush, between 6 and 7:30 p.m.

The N.Y. Times has more here and here.

Face-Off Over the "Ground Zero Mosque"

2010-08-25T14:29:00.000-04:00

As the N.Y. Times recently reported, NYPD was out in force and pens were erected to hold and separate demonstrators for and against the construction of an Islamic center blocks from Ground Zero in New York City. But as the story notes, a few of the penned managed to get up close and personal with counter-demonstrators -- with what may be a surprising result.

Semi-Nude Animal Rights Demonstration (Spain)

2010-08-21T11:04:00.001-04:00

As reported here, the protest is to take place today in front of the Guggenheim in Bilbao, Spain. A larger demonstration is scheduled to take place in front of the bull ring. Animal rights activists are hoping to garner support for banning bullfighting in other regions of the country, on the heels of the ban enacted in Catalonia.

Protesting the Expendable Governor -- At His Other Workplace

2010-08-17T20:01:00.000-04:00

The N.Y. Times has the story here.

Funeral Protest Law Invalidated

2010-08-17T14:01:00.000-04:00

A federal judge in Missouri has invalidated provisions of a state law that limited demonstrations near funeral processions and ceremonies. Story here:

The primary state law had barred protests near any church, cemetery or funeral establishment from an hour before until an hour after any funeral ceremony, procession or memorial service. The secondary measure specifically stated protesters must stay back at least 300 feet from ceremonies and processions. Both provisions levied the same penalty: up to six months in jail and a $500 fine for a first offense and up to one year in jail and a $1,000 fine for repeat offenders.

Gaitan concluded Missouri officials did not demonstrate the protest restrictions served a significant government interest nor that they had been narrowly tailored to prevent the harm of interruptions of funeral services. The judge wrote he was sympathetic to the argument that people attending a funeral deserve some protection, but he noted that the 8th U.S. Circuit Court of Appeals had already rejected that argument.

The case is Phelps-Roper v. Koster.

Chinese Labor Unrest

2010-08-16T08:56:00.000-04:00

This story chronicles the difficulties Chinese laborers have had in organizing demonstrations to protest state company layoffs. Public contention in urban areas is dealth with quickly and effectively by authorities, and carries a significant risk of imprisonment.

Border Protest

2010-08-16T08:53:00.001-04:00

The N.Y. Times has this story on a demonstration in the Arizona desert. The demonstrators were protesting what they regard as "lax" immigration enforcement at the border.

Pamphleteering for Peace

2010-08-09T14:03:00.002-04:00

I think this story highlights why it remains important that pamphleteers and others who seek access to audiences' personal or embodied spaces be permitted such access. I don't think that the speakers in the story, who sought to distribute brochures concerning a Muslim sect that preaches non-violence, would have reached their intended audience (Wisonsin fairgoers) on the Web. This exchange struck me as eminently reasonable and respectful -- in other words, just the sort of dialogue that can unfortunately be quite rare in blog comment sections:

Mr. Rashid continued his efforts beside the carousel, where a local man named William Krumnow responded to the brochure with the question, “How come we can have mosques here, but when you come to the Middle East, you can’t put churches up?”

Rather than go into the factual reality — though Saudi Arabia has such restrictions, many Middle Eastern nations have had churches for centuries — Mr. Rashid solicitously explained that the Koran teaches Muslims to protect Christians and Jews as kindred monotheists.

“If that’s what you guys are believing in,” Mr. Krumnow, who is Lutheran, responded, “then why are things happening the way they are?”

Again, Mr. Rashid listened closely, shutting out the squeals of children and the cries of barkers. “Every religion has its extremists,” he said, “and in Islam, we’ve let our extremists speak too loudly. That’s why we’re here. So you can hear our voice.”

I'm sure that not all of the public exchanges were this cordial. But the message here was far more difficult to avoid than it is in cyberspace. And if delivered properly, it might cause at least a few people to second-guess their perceptions and prejudices regarding Islam and its relation to terrorism.

National Park Permit Regulations Invalidated

2010-08-06T14:08:00.000-04:00

In Boardley v. U.S. Department of the Interior, the D.C. Circuit invalidated National Park Service regulations requiring that small groups and even individual speakers obtain a permit before speaking or assembling in national parks. The regulations at issue required that speakers communicate and assemble only within certain "free speech areas" in the parks. The court held that these areas were designated public forums. With regard to the permit requirement, the court held that it was not narrowly tailored to serve the government's interests in safety and order and did not leave open ample alternative channels of communication. The court was particularly concerned that the permit requirements applied to even small groups and individuals, appeared to render spontaneous speech and assembly impossible, and failed to preserve any opportunity for communicating messages anonymously.

With regard to the breadth of the regulations, the court wrote (slip op. at 25; citations omitted):

The NPS regulations target much more than necessary. If a Girl Scouts leader musters her scouts onto a pavilion in a “free speech area” of Glacier National Park and proceeds to lecture them about the effects of global warming, she will have conducted both a “meeting” and a “gathering”(perhaps also an “assembly”) for which a permit would have been required. An elementary school teacher who leads eight students on an excursion to the Canyon de Chelly National Monument and, within a “free speech area,” shows off her best imitation of a traditional Navajo dance presumably has hosted an unlawful “demonstration.” If a believer in Creationism visits the Hagerman Fossil Beds National Monument and, within a “free speech area,” quietly hands out literature disputing the theory of evolution, he is guilty of “distribut[ing] . . . printed matter” without a permit. Under a plain reading of the NPS regulations, all of this speech is banned unless a permit is first acquired, even though none of it remotely threatens any of the government’s interests.

Unregulated Protest -- Mexico City

2010-08-02T20:51:00.000-04:00

The N.Y. Times has this interesting story about the costs and benefits of unregulated street protests in Mexico City. On the cost side, the protests are highly disruptive. On the benefits side, the right to demonstrate in public appears to be firmly entrenched -- and, for the most part, respected by authorities. There is, of course, a middle ground between completely unregulated public protest and oppressive regulation or suppression of public contention. The U.S. tries, sometimes successfully and sometimes not, to navigate that middle ground according to well established First Amendment principles.

Here is an excerpt from the story:

Since the city does not regulate protests, demonstrators are free to block traffic whenever they please. In just the first three months of this year, there were 740 street demonstrations, an average of about eight and a half a day — an improvement over last year, when there were more than nine a day, the city government points out.

“In our country, it is a constitutional right to demonstrate,” said Juan José García Ochoa, the leftist city government’s point man for protests. “What we can do is to mediate, so that we guarantee the right to demonstrate along with the right of free movement.”

The daily marches may appear to be a sign of a vibrant democracy, proof of a wealth of ideals and opportunities to express them. But they also obey the choreographed rules of engagement laid down during 70 years of rule by the Institutional Revolutionary Party, known as the PRI.

“For many years, the political system was very closed, but it was not authoritarian,” Mr. García Ochoa said. “During 70 years of the PRI, they let you demonstrate as long as you didn’t threaten their hold on power.”

It has been a decade since opposition parties broke the PRI’s political monopoly, but the idea that the best way to get the authorities’ attention is to stop traffic remains embedded in Mexico’s political culture.

Places of Higher Learning and Order Management

2010-07-28T21:36:00.002-04:00

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

2010-07-28T20:57:00.000-04:00

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

2010-07-20T14:01:00.002-04:00

Foxnews.com has the story here.

Mosque Protest

2010-07-15T20:47:00.000-04:00

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

2010-07-10T10:57:00.002-04:00

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

2010-07-09T15:57:00.001-04:00

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

2010-07-08T17:32:00.000-04:00

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

2010-07-03T13:37:00.002-04:00

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

2010-07-02T09:04:00.000-04:00

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.

New York City Art Vendor Rules

2010-06-30T12:19:00.001-04:00

Largely in response to objections for local artists, New York City officials have scaled back plans to limit the number of art vendors in public parks. From a N.Y. Times report:

Officials of the Department of Parks and Recreation had originally sought to cut the number of vendors to 81 to improve pedestrian flow. But after the proposal drew the anger of professional artists, many of whom depend on selling art as a livelihood, the city agreed to cut the number less drastically, to as many as 140.
The city’s new plan will allow 19 additional vendors in Central Park, and it will open up locations near the Metropolitan Museum of Art, an often-crowded passageway for tourists.

In Union Square, one of the most congested islands of greenery in the city, the equivalent of an artists’ market will appear three times a week. An additional 40 artists will be allowed to set up shop on Tuesday, Thursday and Sunday, in the space used by the Greenmarket, the park’s farmers’ market. The spaces will be awarded first come first served. There is no formal permitting; instead, artists simply line up each day to try to get a space.

The amended rules are certainly an improvement. But they will still limit expression in the parks, and will likely not please many vendors.

As far as the First Amendment is concerned, the amended proposal appears to have been drafted with a constitutional challenge in mind. The rules do not distinguish among various types of art, operate on a first-come basis, and are designed to be tailored to address the purproted pedestrian traffic and public order concerns expressed by the city. The city also maintains that artists now have ample alternative channels for displaying and selling their works. This sort of content-neutral restriction on public expression generally withstands constitutional scrutiny under the First Amendment. Even in traditional public forums like parks, officials have fairly broad discretion to impose content-neutral time, place and manner regulations on speech. For example, New York City successfully defended limits on the number of protesters allowed in portions of Central Park on the ground that large numbers of people could damage the park's lawn.

Hands Across the Sand

2010-06-30T11:47:00.000-04:00

Here is a report regarding another form of public contention in response to the BP oil spill in the Gulf. Note the combination of social networking technologies and physical displays:

In all, mainly through connections made through Facebook, 820 events were scheduled in all 50 states and in 34 countries. Thousands of people worldwide stood hand in hand — with some, here in South Beach at least, breaking the chain only for surfers or topless women — to protest drilling and to demand cleaner energy sources.

The G20 in Toronto

2010-06-30T11:42:00.000-04:00

As reported in the N.Y. Times, more than 20,000 officers were deployed during the recent G20 summit in Toronto. Ater the police apparently allowed small groups of violent protesters to engage in acts of vandalism, they stepped up their efforts and arrested more than 600 people. Toronto has followed the typical pattern of "militarizing" the places surrounding the summit meetings. Militarization includes surveillance activities, protest zoning, suspension of civil liberties near contested venues, use of physical force and chemical irritants, and deployment of large police forces. Under such conditions, protests become difficult if not impossible to conduct. Peaceful protesters and members of the press are often swept into the police dragnet. (I discuss the militarization of public places during critical democratic moments in Chapter 7 of Speech Out of Doors.)

Civil liberties groups have objected to the policing of the G20 event. From the Times report:

“Civil liberties are in rough shape today,” said Nathalie Des Rosiers, the general counsel of the Canadian Civil Liberties Association, which had two of its observers arrested and detained. “We will have to have some accountability for what is going on.”

In a statement, the Canadian branch of Amnesty International called on governments to review the security measures made for the meeting, including a temporary suspension of various civil liberties in the portion of this city’s downtown near the meeting site.

One difference between Toronto and other venues is that public officials appear to have been more honest and transparent regarding the costs of all of the security measures. The costs are estimated to total in excess of $1 billion.

Day Laborers and Free Speech

2010-06-15T21:43:00.002-04:00

Efforts to regulate the activities of day laborers, who solicit work in public places, have raised some interesting equal protection and free speech issues. Efforts to displace day laborers lie at the intersection of free speech and immigration concerns.

The Ninth Circuit has just upheld a Redondo Beach, California ordinance that limits such solicitation. In a 60-page decision, the court held that Redondo Beach Municipal Code § 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile, is a valid time, place and manner regulation.

The court concluded that solicitation, which in this case consisted of leaving a public sidewalk to approach a car stopped on a public street, was expressive. However, it held that the ordinance was content-neutral and deferred to the city's stated interests in ensuring the flow of traffic and public safety. The court also concluded that the ordinance was narrowly tailored and left open ample and adequate alternative channels of communication because it "permits persons to solicit 'business,employment, or contributions' from people on sidewalks or in similar public forums within Redondo Beach, so long as the act does not take place when the target of the solicitation is actually driving in the street."

Judge Warlaw dissented on the ground that the Redondo Beach ordinance was an overbroad restriction on expressive activity in a traditional public forum. The opinion offers a strong defense of the act of solicitation and the traditional public forum. Judge Wardlaw concluded:

The majority tramples upon the right of free speech in the most traditional of public fora. It erroneously relies upon precedent involving an as-applied challenge to the constitutionality of an aspirationally similar statute and contorts the actual words of the Redondo Beach Ordinance beyond recognition. The district court got it right: The Redondo Beach Ordinance is an unconstitutional regulation of speech; it is not narrowly tailored to meet Redondo Beach’s asserted governmental interests; and it fails to leave open alternative avenues for the
day laborers’ expression.

Brooklyn Public Library Read-In

2010-06-14T17:00:00.000-04:00

This interesting N.Y. Times story reports that some librarians in Brooklyn are not taking proposed city budget cuts lying down. They held a 24-hour "read-in" to protest the cuts.

As this Supreme Court case from 1966 demonstrates, public libraries were integral "contested" places during the civil rights era. Then it was black protesters challenging segregationist policies at public facilities. Today it is the librarians themselves who are protesting, and fighting to keep their facilities open to the public at large.

2004 NYC Surveillance Documents Can Be Kept Secret

2010-06-14T16:47:00.000-04:00

According to this report in the N.Y. Times, the Second Circuit has held that New York City may keep secret about 1,800 pages of "Field Reports" relating to surveillance conducted by officers in NYC and across the globe prior to the 2004 Republican National Convention in NYC. A large group of plaintiffs who were detained and held overnight at the convention after they allegedly held peaceful protests are pursuing a civil rights action against the city. The plaintiffs allege that they were arrested and detained without proper cause. The city contends that the threat level at the convention was high, and that its mass arrest policy was justified.

Covert surveillance has become part of the militarized environment preceding critical democratic moments such as national party conventions. Some "Action Reports" filed by police during surveillance had previsously been released during litigation. Those reports indicated that officers were conducting surveillance on peaceful protest groups, including those who intended to engage in peaceful vigils, marches, and poetry readings during the conventions. About 600 pages of "End User Reports" have also been disclosed, which the city says justify its conclusion that the convention was a possible terrorist target. The latest discovery battle involves the Field Reports, which apparently detail covert surveillance activities by NYPD leading up to an during the convention.

In its opinion, the Second Circuit held that the Field Reports are protected under the law enforcement privilege. It concluded that plaintiffs had not demonstrated a compelling need for the documents, largely in light of their possession of the End User Reports, and that disclosure could harm law enforcement operations at future public events. The case will proceed to trial.

Sidewalk Leafletting

2010-06-09T18:03:00.000-04:00

According to this report, a federal court has ruled that a Dearborn group has no First Amendment right to roam about the sidewalks near an Arab-American festival to distribute literature about Christianity. Instead, the court held that would-be pamphleteer could be confined to a booth space within the festival grounds. The plaintiff sued, in part, because he claimed that festival-goers would not be likely to stop at the assigned booth. I gave a radio interview some time ago regarding this case. Along with a few other law professors, I also expressed some early thoughts on the case in this FOXNews.com report.

Bans on leafetting in traditional public forums (indeed in any type of forum) are generally deemed unconstitutional. The fact that such a ban will help maintain public order, as the Dearborn authorities appear to allege, does not suffice to make what is essentially a medium ban constitutional. While it is true that the First Amendment does not guarantee the speaker the best location or means of expression, it is also the case that a speaker cannot be denied a right to speak in a traditional public forum on the ground that he may speak in some other place -- in this case from inside a booth. Like other "free speech zones," the booth appears to preserve the speaker's right to communicate in public. But the speaker's audience in this case is not going to be a willing one; hence the need to use the public sidewalks for what will likely be unwanted and in some cases perhaps unpleasant encounters. (I am assuming, of course, that the sidewalks remained "public" in this case -- i.e., that they were not part of any private permitted event.)

BP Stations as Contested Places

2010-06-03T11:49:00.000-04:00

As reported here, protesters have begun to appear at retail BP gas stations in response to the Gulf oil spill. As the article suggests, the protests are not likely to have a large impact on the consumption of gasoline at BP outlets. Similar efforts following the Exxon Valdez oil spill were largely ineffective. However, the public gatherings and protests will serve as a tangible reminder to the public of the ongoing catastrophe.

Snyder v. Phelps -- Petitioner's Brief

2010-05-30T17:05:00.000-04:00

The petitioner's brief has been filed in Snyder v. Phelps. Over at the Volokh Conspiracy, Eugene Volokh has a number of informative posts on the merits of the intentional infliction and privacy claims. According to Mr. Phelps, the Fourth Circuit's principal error was to give "absolute immunity" to a category of hyperbole that does not make factual claims about the target of the speech. The brief also relies heavily on the "captive audience" principle, noting that the Court has applied the doctrine outside the context of the home -- most notably in the abortion clinic protest context.

Not surprisingly, petitioner's brief barely acknowledges that the speakers were lawfully in a public place when they engaged in their offensive protest of the Snyder funeral. For me that is a key factor. One almost gets the impression from the brief that the speech occurred inside the cemetery or church grounds (although the brief does finally mention that the Phelps's were 200-300 feet from the church).

If the jury's verdict is upheld, public protesters may well be chilled from communicating in a manner that the target audience (and the jury) may find "extreme and outrageous." It is true that Mr. Snyder is a private citizen and did not seek the publicity the Phelps's brought to his son's funeral. It is also the case that their speech is highly offensive not only to the Synders but to any reasonable person who might view or hear it. However, to extend the captive audience and privacy doctrines to what is, in essence, a street protest would be a very dangerous precedent. Unfortnately the Supreme Court started down this path in the abortion clinic protest cases, where it balanced the protesters' interests against the public privacy and tranquility interests of the target audience. As reprehensible as the speech in this case may be, upholding million-dollar tort judgments based solely upon public speech activities would be a substantial blow to public protests and to free speech more generally.

One cannot help but have some sympathy for the Snyders and their plea for respect during their time of mourning. However, to create a category of "extreme and outrageous" speech that is subject to civil liability would give too much power to juries to regulate speech based on its offensive content. The same is true for the intrustion upon seclusion claim, which in this case stems almost solely from the speech of the Phelps family rather than any conduct interfering with a recognized privacy interest. The bottom line, for me, is that regulating public speech and contention of this sort should be accomplished under properly drawn content-neutral time, place and manner laws. So long as they are in compliance with such laws, even the most offensive speakers are entitled to convey their messages in public.

Bangkok -- The Aftermath

2010-05-21T09:21:00.000-04:00

As reported in the N.Y. Times:

Two months of tension and violence ended with a whimper on Thursday as the last exhausted group of protesters filed out of a Buddhist temple where they had taken refuge, bewildered and frightened, some in tears.

Bangkok Is Tense as Order Returns (May 21, 2010) As they shuffled past a smear of blood on the ground that told of the recent fighting, a line of female police officers in black berets comforted them, touching their shoulders and murmuring: “Don’t be afraid. You’re safe now. Have a safe journey home.”

But it felt, on this morning after a political convulsion unlike anything anyone here has seen, that Thailand’s future was anything but safe.

“It was tragic,” said Anusart Suwanmongkol, a senator who supports the government. “Yesterday was the most tragic day in my memory, in Thai history. Nobody gained anything. Nobody won. The country lost.”

*********

The clashes on Wednesday, along with four years of acrimonious political combat, have exposed rifts and resentments in Thailand that have smoldered under a surface of smiles and a virtue the Thais call “cool heart.”

The country’s divisions and enmities have only deepened. Nothing has been resolved. The battle for power between social classes and between the politicians who manipulate them continues.

Puerto Rico Campus Protests

2010-05-21T09:15:00.001-04:00

As reported by the N.Y. Times, students have effectively halted the academic calendar on several Puerto Rico campuses through sit-ins, strikes, and occupations. The protests, which have apparently been going on for months, are intended to convey students' objections to certain austerity measures that they say will disparately affect low-income students. Students are also demanding more transparency in university financing. Students in California staged similar, although less disruptive, protests on several campuses in response to proposed cuts in state financing for higher education.

Sit-In at Senator McCain's Tucson Office

2010-05-19T09:21:00.001-04:00

As the N.Y. Times reported, five undocumented immigrants dressed in caps and gowns staged a sit-in at the Tucson office of Senator John McCain:

Four of the protesters, including three who are in the country illegally, were arrested Monday evening on misdemeanor trespassing charges. The three were expected to face deportation proceedings.

It was the first time students have directly risked deportation in an effort to prompt Congress to take up a bill that would benefit illegal immigrant youths.

Senator McCain had once been a supporter of comprehensive immigration legislation that provided a path to citizenship for those in the U.S. illegally. That was before he became embroiled in a very tough primary battle.

Government Moves on Thai Red Shirts

2010-05-19T09:12:00.000-04:00

As the protests dragged on and the talks fizzled, it was inevitable that the Thai government would move more agressively to end the stalemate. According to this report in the N.Y. Times, the military has broken through the protesters' barricade in the commercial center of Bangkok.

The government has shown rather remarkable restraint up to this point. Still, many have been killed and injured. As well, the protests have had a substantial economic impact on the local economy. Businesses have been closed for weeks and the tourism industry has taken a major hit. Perhaps the protesters should have accepted the deal offered a week or so ago that would have shortened the time frame for parliamentary elections. One wonders what they will have to show for their efforts once the crackdown is complete.

Violence in Bangkok

2010-05-15T21:40:00.000-04:00

The proposed settlement did not hold together. As reported here, protesters and police clashed after a renegade general who was working with the protesters was shot in the head. The clashes are now in their third day, and according to reports have claimed at least 24 lives with more than 170 reported injured. The Thai government, which thus far has generally exercised restraint, has vowed to take a more aggressive posture. However, aggressive action against the protesters, who began their demonstration two months ago, is not yet a certainty:

Despite the worries that violence would escalate, the government has powerful reasons to show restraint. Officials have held back for weeks for fear of causing a bloodbath — further tarnishing Thailand’s reputation as a business and tourist-friendly country — or of inciting unrest in other parts of the country sympathetic to the protesters.

Rather than forcing a showdown, the military could instead choose to continue to try to divide the demonstrators, hoping that more moderate members will leave the area as they run out of food and water. Over the last several days, the military has set up checkpoints on roads leading to the protesters’ encampment, keeping supporters with new supplies out and checking the identity of anyone trying to enter the area.

Egypt's "Emergency Law"

2010-05-12T16:14:00.001-04:00

As reported in the N.Y. Times, the Egyptian Parliament has just extended country's emergency law, which gives authorities broad authority to arrest and detain people and to limit free speech and assembly. Protesters allege that the law has been used to suppress dissent. They question the purported terrorism-related rationale for the extension:

In an unusual case of public outreach by Egypt’s normally tight-lipped leaders, the government took pains to explain its decision and announced that the emergency law — in place continuously since President Anwar el-Sadat was assassinated in 1981 — would be used only in cases of terrorism and drug trafficking. Officials also said that some provisions of the law would be dropped.

But the concept of terrorism is so broad in Egyptian law and the language in the new measure so malleable, that the government decision was immediately criticized by human rights groups, political activists and independent human rights monitors, who say they expect little to change in a nation that routinely uses the heavy hand of the police and prisons to silence political opposition.

One might think of public space militarization as a matter of degree. Egypt's emergency law, which is a kind of martial law-light, stands somewhere between Iran's escalated violence and executions and the surveillance and spatial tactics used in the U.S.

Thai Protest Resolution (?)

2010-05-11T08:48:00.001-04:00

The N.Y. Times is reporting that anti-government protesters in Bangkok have accepted a deal that will result in new elections in November. Some protesters have criticized the deal and may not walk away. However, this seems as if it will resolve the public contest, which has resulted in 27 deaths and over 1,000 injuries.

Update (5/12): The N.Y. Times reports that the deal may not hold after all.

The Grannies

2010-05-08T09:01:00.000-04:00

This story in the N.Y. Times describes the ongoing protest on New York's Fifth Avenue by mostly elderly grandmothers of America's wars abroad. A few years ago, a small group of grandmothers affiliated with the "Granny Peace Brigade" was arrested and charged with blocking access to an armed forces recruting center in Times Square. The judge, who seemed embarrassed to be presiding over the proceedings, acquitted the grannies.

Why do they stay out there, rain or shine, in a seemingly futile effort? These comments summed it up nicely:

“The point is to interfere with the routine,” Ms. Heinz said. “As people walk down the street, it has an impact on their consciousness. If it engages them, it’s fine. If it infuriates them, it’s fine.”

Mr. Aubrey invoked Dylan Thomas’s admonition to not go gentle into that good night. “ ‘Rage, rage,’ ” he said. “That’s the way I feel. I have to do something.” Next to him stood James Marsh, 73 — a “granduncle for peace.” He said, “I don’t want to say at the end of my life that I didn’t stand up for peace and justice.”

Another protester, Laurie Arbeiter, invoked words ascribed to the Rev. A. J. Muste, a prominent pacifist who died in 1967. During the Vietnam War, he was asked at a candlelight vigil outside the White House if he truly felt that such actions would alter national policy. “I don’t do this to change the country,” he said. “I do this so the country won’t change me.”

Harvey Milk's Bullhorn

2010-05-06T09:33:00.000-04:00

As reported in the New York Times, Harvey Milk's bullhorn, which was used to rally protesters in favor of gay and lesbian rights in the 1970s, has become a contested artifact. From the story:

Of late, however, the bullhorn has been at the center of another type of dispute, one that pits its caretaker, Cleve Jones, a veteran organizer, against an elementary school that bears Mr. Milk’s name, and has some gay activists howling that Mr. Jones has absconded with a piece of their history.

For most of the last decade, the bullhorn — a Fanon Transistorized Megaphone, Model 8S-C — was locked in a dusty display cabinet at the Harvey Milk Civil Rights Academy, an alternative K-5 elementary school in the Castro neighborhood. It also did a recent star turn, however, playing itself in the 2008 film “Milk.”
Now, Mr. Jones, who was given the bullhorn by Mr. Milk shortly before he was murdered in 1978, says he is not so sure that the school is the right home for it, worrying aloud about its safety, its treatment and its relative obscurity in the school stairwell.

Greek Protests Turn Deadly

2010-05-06T09:29:00.000-04:00

As reported here, three people were killed when the austerity-related protests in Greece took a violent turn. Anarchists are being blamed for the violence.

In mass demonstrations llike this, it is not uncommon for fringe elements to hijack peaceful contention. This poses a substantial challenge to protest organizers and participants. The violent turn obviously alters the public narrative. Reporters will now focus on the casualties rather than the public discontent with proposed employment and social service cuts. Public support and tolerance for continued protests may decline, as people view the gatherings more as mobs than legitimate assemblies.

Kent State

2010-05-05T09:01:00.000-04:00

Yesterday was the anniversary of the Kent State shootings, a pivotal event in the Vietnam antiwar protest movement. At least according to this story, the significance of the events of May 4, 1970 may be largely lost on today's college freshmen:

Fourteen of 15 freshmen interviewed on the campus said they did not feel any connection with the lives of the students who were protesting the United States’ invasion of Cambodia at the time.

The university requires first-year students to watch a historical video of what happened that day and the events leading to it: the violent confrontation between protesters and local police and the burning of the R.O.T.C. building near the Commons.

Freshmen attribute their lack of interest to the time span.

“Our generation doesn’t necessarily really care because it happened so long ago none of us were alive,” said Ethan Moore, a freshman majoring in nursing. “Though it definitely shouldn’t be forgotten because they were people, too.”

Indeed.

Public Contention Around the World

2010-05-03T16:29:00.000-04:00

Lots of protests and demonstrations in the news:

In Bangkok, protesters stormed a hospital looking for soldiers;

In Iran, authorities appear to have repressed a public demonstration by intimidating possible participants;

In Greece, protesters took to the streets to rally against proposed austerity measures;

And here in the U.S., thousands rallied against Arizona's new immigration law and in favor of a comprehensive federal immigration law.

Egyptian Labor Protests

2010-04-29T20:27:00.000-04:00

According to this report, Egyptian workers have been protesting low wages and the absence of jobs since February. The government has generally been more tolerant of labor protests than political demonstrations. There is apparently some concern on the part of officials that the labor action will be transformed into a political movement. From the story:

Using an emergency law that allows arrest without charge and restricts the ability to organize, the Egyptian government and the ruling National Democratic Party have for decades blocked development of an effective opposition while monopolizing the levers of power. The open question — one that analysts say the government fears — is whether the workers will connect their economic woes with virtual one-party rule and organize into a political force.

According to this report on Egypt's labor movement, "7 million workers engaged in 1,900 strikes and other forms of protest” from 2004 through 2008. That, some say, is the largest social movement in Egypt in more than 50 years. Like Thai officials, Egyptian officials have been relatively tolerant of the street protests thus far. If and when they become politicized, look for stronger action from the government.

Social Networking and Public Protests

2010-04-28T22:46:00.000-04:00

Social networking media can be an effective way to organize mass protests. This was first demonstrated in the U.S. during the 1999 World Trade Organization Protests in Seattle. Social networking technologies have facilitated mass protests in repressive regimes across the globe, including those in Iran last summer.

This event in New Jersey may be the first instance in which students used Facebook to organize a mass walkout. More than 18,000 students responded to a Facebook post calling for a demonstration to protest proposed state budget cuts for education. Social networking does not always replace traditional public contention -- sometimes, as in this instance, it assists in organizing and publicizing it.

Protesting Arizona's New Immigration Law

2010-04-26T21:12:00.000-04:00

Here is a brief story and some photos of yesterday's protest at the state capitol. Protests are being scheduled across the country for May 1. Four years ago immigrants took to the streets in mass numbers to protest a federal immigration bill. The Arizona measure appears to be engendering a similar level of passion.

Recording Public Demonstrations

2010-04-26T20:38:00.000-04:00

The New York Civil Liberties Union has filed a civil action challenging the enforcement of a federal regulation governing photography and videotaping near federal buildings. Here are the first two paragraphs of the complaint:

1. This is a civil rights action to vindicate the constitutional right of New Yorkers and others to take photographs or video in outdoor areas that are open to the public andthat are near federal' courthouses, office buildings, and other federal property. ThePlaintiff Antonio Musumeci was arrested in November 2009 while videotaping a political protest in a public plaza outside of the federal courthouse in lower Manhattan. Mr. Musumeci was charged with violating a vague federal regulation that restricts photography and that appears to be inconsistently enforced.

2. This regulation is unconstitutional to the extent that it in fact regulates noncommercial photography in outdoor areas -- like sidewalks and plazas -- to which the public has unrestricted access. To the extent it does not regulate such activity, federal law-enforcement officials are improperly using the regulation as an excuse to arrest and harass law-abiding photographers.

If the allegations in the Complaint are true, plaintiff was arrested for photographing political activity near a federal courthouse -- but while located on a public plaza outdoors. Federal officials do not appear to be enforcing the regulation in question, which is described in the complaint, consistently. For example, photography is permitted on the plaza in front of the Supreme Court building. It's also not so clear that a regulation can effectively transform a public way into a non-public forum. In United States v. Grace (1983), the Court rejected the argument that Congress could simply designate sidewalks near the Supreme Court non-public forums and thereby effectively prohibit speech in such areas.

Recent incidents involving the Critical Mass bike rides and other public demonstrations have shown that having video or photographic evidence of the event can be critical to later determining whether civil rights have been violated. It is also important that photographers and others be able to document public dissent when it occurs.

Violence in Bangkok

2010-04-24T22:46:00.001-04:00

As expected, events have turned more violent as rival groups of demonstrators continue to face off in the streets, under the watchful eye of the military. According to a report from the N.Y. Times:

Five grenades exploded in the heart of Bangkok’s business district on Thursday evening, killing at least one person and wounding 75 as rival groups of protesters demonstrated and shouted insults at one another across a makeshift barricade.

Explosions in Bangkok Wound DozensThe explosions, several of which took place on the platform of an elevated train, scattered shrapnel through crowds that included foreign tourists, sending people fleeing in panic into shops and restaurants.

The attacks threatened to ignite wider violence after more than six weeks of protests that seek to bring down the government and force a new election.

Deputy Prime Minister Suthep Thaugsuban, speaking on television, blamed the antigovernment protesters known as the red shirts, who have paralyzed parts of Bangkok. He said that rocket-propelled grenades had been fired from within an area the red shirts occupied. Although he said three people had been killed, the government’s Erawan Medical Center confirmed only one death.

More on the Proposed New York City Vendor Rules

2010-04-24T22:40:00.002-04:00

As one might expect, frustrated artists turned to artistic expression to oppose the proposed rules for limiting the sale of art and other items in certain city parks. Story here.

Klan Permit Denial

2010-04-21T21:42:00.000-04:00

Here is a report of an odd case from Missouri involving the denial of permit for a KKK gathering by the Department of Natural Resources. According to the report:

Frank Ancona, imperial wizard of the Traditionalist American Knights of the Ku Klux Klan, filed a lawsuit seeking an emergency order to overrule the Department of Natural Resources’ rejection of his application to rent a pavilion at the Fort Davidson Historic Site in southeast Missouri.

U.S. District Judge Rodney Sippel in St. Louis issued a temporary restraining order last week against the DNR decision.

But Sippel said the group had to follow DNR rules, one of which requires $2 million in liability insurance for special events, according to DNR spokesman Judd Slivka.

The Klan group wasn’t able to come up with the required insurance by the date of the event, scheduled for April 17, Ancona said. Instead, the group held its picnic on private property about 40 miles away, he said.

Ancona said his group intends to seek another permit for a similar gathering at the site.

When the DNR originally denied the Klan group’s permit request on March 23, the DNR cited the group’s desire to have a Confederate flag flying at the historic site and to present information claiming the Confederate flag had been removed from the state historic site.

The DNR said in a letter to the ACLU that the Confederate battle flag was never flown at the site.

The DNR also said the flag depicted on the Klan group’s flier was an Army of Northern Virginia unit flag.

“These and other historical inaccuracies render the proposed public event inconsistent with the historical mission and purpose of the Fort Davidson State Historic Site,” the DNR letter said.

The ACLU, which is representing the Klan, says this is a clear-cut case of viewpoint discrimination. The "historical inaccuracies" argument seems like a sham. In addition, it appears the DNR sought to classify the proposed gathering a "special event," thus activating the $2 million liability insurance requirement.   The Klan claims the event is a barbecue, not a public rally.  Liability insurance requirements, which are relatively common, can make it difficult to have a demonstration. Depending on the local market, insurance policies for public demonstrations can be difficult to procure and somewhat expensive. In many localities, this is merely one of the numerous requirements groups must meet in order to have a public gathering.

Should the case proceed, I wonder if the DNR will try to argue that the pavilion expresses a governmental message of some sort. In the recent Summum case, the Supreme Court concluded that municipal parks often convey government messages, thus entitling local governments to selectively accept monuments for permanent placement. The DNR seems to be arguing that it has a similar power to protect the pavilion's "message."

Counter-Demonstrations in Bangkok

2010-04-19T15:39:00.000-04:00

As reported here, pro-government demonstrators have now taken to the streets to demand that the government restore order and to clash with the Red Shirts, who have occupied a central commerical district for weeks. The counter-demonstrators supporting the government are made up in part of Yellow Shirts, who played an instrumental role in bringing the current government to power. Like our "blue" and "red" parties, the colors signify different social and political circumstances and outlooks:

The reds and the yellows embody what seem to be irreconcilable sides in the country’s deep-running social and political divisions. While the red shirts are mostly drawn from the country’s rural and urban poor, the yellow shirts support a royalist bureaucratic and business elite that has held sway for generations.

Not surprisingly, those aligned with the business elite have had enough of the commercial disruption in Bangkok. Meanwhile, by all accounts the Red Shirts remain defiant. There is now an explosive mix of red, yellow, and military factions in the streets of Bangkok. It seems that the death toll is very likely to increase before any resolution is reached.

Botched Raid on Thai Protest Leaders

2010-04-18T21:14:00.001-04:00

As reported here, Thai security forces engaged in a botched raid on a hotel where several protest leaders were housed. The Prime Minister has now transferred full responsibility for dealing with protesters to the military. Given that protesters' ocupation of a major commercial center in Bangkok is affecting the tourism sector and the larger Thai economy, I would not be surprised to see far more aggressive tactics by the military in the coming days and weeks.

New York City and Street Vendors

2010-04-18T21:03:00.001-04:00

As reported here, New York City is considering new rules to limit the number of vendors in public parks. Efforts to control the streets and sidewalks are nothing new in NYC, of course. Vendors seem to have multiplied outside museums and in parks like Union Square Park, perhaps in part as a result of the sour economy.

There are serious First Amendment issues lurking in this latest effort to regulate NYC's public spaces. The proposed rules would substantially reduce the number of verndors in some spaces -- perhaps by as much as 75%. At Prawfsblawg, Bill Araiza raises some interesting questions in this post regarding the proposed rules' focus on expressive vendors (versus commercial and other vendors).

This recent op-ed in the N.Y. Times by Edward Wallace, a former City Council member, sets out the larger stakes raised by the proposed regulations. Wallace correctly notes that the rules for use of public space must balance the rights of speakers and those of the public who wish to use the same spaces. Public spaces must generally be available for a multitude of public uses. Vendors cannot be allowed, for example, to block entrances or monopolize certain spaces. I agree with much of what Wallace writes. But his op-ed goes too far in equalizing the rights of speakers and bench-sitters. According to Wallace:

In truth, the First Amendment protects the right of all the people to use our public spaces. The right to sit quietly on a bench is as fully protected as the right to declaim at a speaker’s corner. Sometimes the government may appear to be the opponent of free assembly and free expression, but the new park regulations protect the rights of the majority of park users while standing up for the rights of the individual art vendor.

The reason the First Amendment grants an exalted status to public parks and sidewalks is that they have been used time out of mind for public discussion and debate. "The right to sit quietly on a bench," if meant to suggest some right of tranquil use free from disturbing vendors, is not "as fully protected" as a speaker's right to use public forum spaces. I hope officials will keep the preferred position of expressive uses in mind when drafting and approving the new rules. Commerce has already consumed a good portion of what once were expressive public spaces. By all means, require that the benches be shared. But we can ill afford further diminishment of opportunities for pamphleteers and other speech vendors in public forums.

"Thai Protesters Revel, the Government Reels and the Army Wavers"

2010-04-14T11:59:00.000-04:00

In this case, the title says it all. The protesters would appear to have won. What they've won, however, is not yet clear. The Prime Minister has not resigned. The ruling party has not been disbanded (allthough it finds itself in some administrative peril). And protesters do not appear to have a governing party or plan firmly in place. Once the celebration ends, the Red Shirts will need to do the hard work of forming a government and a plan of action. And they will have to work very hard indeed to avoid the fate of the Yellow Shirts. Remember them?

Kyrgyzstan and Whom to "Root For"

2010-04-10T13:07:00.000-04:00

Eugene Volokh asks, with respect to the recent protests in Kyrgyzstan, "whom in blazes am I suppos[ed] to be rooting for?" I don't know enough about the merits of the incoming and departing governments to answer on the merits. However, I'll confess (not surprisngly given my work on public expression) to a bias in favor of protesters in most cases. Public protest is a messy and, in many countries (including our own) sometimes dangerous activity. Given the inherent risks involved, I can't help but applaud the recent street demonstrations in places like Kyrgyzstan, Iran, and Thailand. If public contention in these and other instances looks like an act of desperation, that's because it is often precisely that. What is truly remarkable is that public demonstrations are sometimes successful means of forcing elections or removing a ruling party.

I don't want to romanticize public protest. There are elements in every crowd that are bent on destruction rather than reform. The violence that often accompanies public protests is regrettable. As well, the opposition may not be of purer motive than the ruling party it seeks to displace. In more mature democracies like the U.S., we may look upon these protests as unruly mobs. But we forget our own history in doing so. Our revolutions and populist uprisings have hardly been free of violence. We can and should hope for more peaceful means of transferring power in countries like Kyrgyzstan, Thailand, and Iran. Until that day comes, though, I think I'll root for the protesters.

Thai Protests Continue

2010-04-08T19:42:00.002-04:00

According to this report Thai protesters have stormed Parliament, causing ministers to flee by helicopter. The Prime Minister has declared a state of emergency, which authorizes authorities to ban public gatherings of more than five people and suspend certain civil liberties. Still, police did not appear to be using force against the Red Shirts. Out of self-preservation motives and to ensure that the situation does not become worse, the government has shown considerable restraint during the weeks-long protests.

UPDATE (4/10): This report indicates that military forces pushed back against the protesters, but ultimately avoided a full-scale confrontation.

UPDATE II (4/11): And this report indicates that things have taken a violent turn, with 18 dead and more than 650 wounded. It appears that protesters went on the offensive and that the military was then forced to respond. Soldiers were eventually ordered to retreat. It is not clear where negotiations between the Red Shirts and the Prime Minister stand. The protesters continue to demand his ouster, and the Prime Minister continues to offer only earlier elections. The mostly successful clashes with soldiers will likely embolden the protesters.

Kyrgyzstan Protests

2010-04-07T21:38:00.001-04:00

The NY Times reports that opposition protesters have toppled the government in Kyrgyzstan. More than 40 people were killed and at least 350 were injured in clashes with police. According to the report:

Riot police officers fired rounds of live ammunition into angry crowds of demonstrators who gathered around government buildings to rally against what they termed the government’s brutality and corruption, as well as a recent decision to increase utility rates sharply. Witnesses said that the police seemed to panic, and that there was no sign of supervision. In several cases, demonstrators wrested their weapons away from them.

By early Thursday morning, opposition officials occupied many government buildings in Bishkek, and were demanding that the president, Kurmanbek Bakiyev, sign a formal letter of resignation. Mr. Bakiyev has issued no public remarks since the protests began, and it was unclear whether he was still in the country after he left the capital on the presidential plane.

A short video of the protest is here.

Burton Joseph (1930-2010)

2010-04-05T16:13:00.000-04:00

Burton Joseph, who defended demonstrators arrested at the 1968 Democratic National Convention in Chicago and helped persuade the ACLU to defend the Nazis who infamously sought a permit to march through Skokie, Illinois, has died. The New York Times obituary is here.

Thai Protests

2010-04-05T14:32:00.003-04:00

The protests in Thailand continue. This piece from the New York Times makes two interesting observations. The first is the apparent shedding of a "culture of restraint" in Thai society:

The Thailand of today is not quite the France of 1789 — there is no history of major tensions between rich and poor here, and most of the country is peaceful despite the noisy protests. But more than ever Thailand’s underprivileged are less inclined to quietly accept their station in life as past generations did and are voicing anger about wide disparities in wealth, about shakedowns by the police and what they see as the longstanding condescension in Bangkok toward people who speak provincial dialects, especially from the northeast.

The deference, gentility and graciousness that have helped anchor the social hierarchy in Thailand for centuries are fraying, analysts say, as poorer Thais become more assertive, discarding long-held taboos that discouraged confrontation.

The other interesting observation relates, again, to the role of technology:

The role of technology in bringing together the protesters has been crucial. The leaders of the protest movement have used community radio stations, mobile-phone messaging and the Internet to forge an identity for lower-income Thais and connect a vast constellation of people in villages and towns.

At times the protests in Bangkok could be described as flash mobs of the disaffected. Protesters, who wear trademark red shirts, have converged on government buildings, banks and military bases across the city guided by text messages.

As reported here, protesters have escalated their disruptive tactics by blocking a substantial area near the police headquarters in Bangkok. The question remains how long the police will tolerate the disruption before cracking down. Authorities have shown more restraint than usual in this confrontation, presumably in the hope that the protests would dwindle.

UPDATE: More coverage from the New York Times here.

FURTHER UPDATE (4/6): Here.

Snyder v. Phelps

2010-04-01T13:55:00.000-04:00

I gave a press interview for this story in Stars and Stripes about Snyder v. Phelps, the funeral protest case pending before the Supreme Court. The article doesn't address the legal issue before the court -- whether the First Amendment limits imposing tort liability for the protest activities at issue.

The speech at issue cannot be regulated on any theory that it falls within an illegal content category (threats, incitements, etc.). Nor is the issue whether the government can regulate the speech because it's offensive (it can't), or because those in the funeral procession are "captive audiences" (they aren't -- indeed in the Snyder case the plaintiff did not see the Westboro protesters on the day of the funeral). The Supreme Court likely took the case to clarify whether the First Amendment limits the imposition of tort liability where the plaintiff is not a public figure but the speech arguably pertains to a matter of public concern (assuming the speech at issue does pertain to a matter of public concern and not solely to the Snyders' son or the Synders themselves).

Curfew Upheld

2010-03-31T16:20:00.000-04:00

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

2010-03-31T10:32:00.000-04:00

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.

Krishnas Lose Battle Over Solicitation at LAX

2010-03-29T15:47:00.002-04:00

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.

"Sidewalks Are For People"

2010-03-28T20:44:00.002-04:00

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.

Flash Mobs

2010-03-25T23:14:00.000-04:00

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"

2010-03-25T23:06:00.002-04:00

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.

Supreme Court Declines to Review Massachusetts Abortion Clinic Free Speech Case

2010-03-22T21:36:00.001-04:00

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

2010-03-22T12:16:00.000-04:00

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.

Thai Protests Continue

2010-03-18T14:20:00.000-04:00

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.

Snyder v. Phelps

2010-03-17T13:47:00.000-04:00

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

2010-03-17T09:04:00.000-04:00

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.