Curfew Upheld

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

The Ordinance prohibits a minor from being in public from 11:00 p.m. till 5:00 a.m. unless one of the exceptions to the ordinance is applicable. A minor may be in public during those hours if: (1) he is accompanied by a parent or legal guardian; or (2) the minor is on an ―emergency errand or other legitimate business at the direction of his ―parents or legal guardian or custodian or school and has ―some form of documentation as to the business to be performed. Doe argues that the broad reach and narrow exceptions of the Ordinance prohibit protected conduct including attending religious exercises, town hall meetings, and school events. Accordingly, Doe argues that the Ordinance constitutes an impermissible time, place, and manner restriction on speech.

The court rejected this claim.  A key factor, one the court said distinguished this case from others invalidating similar curfew measures, was that the ordinance allowed minors to be present in public forums so long as they had some form of written permission from a parent. 

"Critical Mass" Settlement

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

Krishnas Lose Battle Over Solicitation at LAX

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

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

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

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

     

"Sidewalks Are For People"

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

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

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

Flash Mobs

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

"Freedom Glows"

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

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

Supreme Court Declines to Review Massachusetts Abortion Clinic Free Speech Case

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

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

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

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