Dearborn Leafletting Ruling

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

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

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

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"

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

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

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.