Occupy DC

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

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

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

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

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

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

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.