the first amendment in a time of crisis

[Marci Hamilton]

This thread has probably exhausted itself, but I did want to respond to
Tobias on these two points.   I don't think Feiner applies unless the police
see the potential for mob unrest.   If so, the police have the power to
decide how best to proceed, given their resources, etc.  And choosing between
speaker agitating a crowd and the crowd is part of that decisionmaking
process.  While there is a right to speak, and even to speak in an offensive
way, there is no absolute right and no right to get a mob riled up.  The
speech right ends where the actions generated harm the public interest.

As to police liability for mob violence--DeShaney does not speak to the
question whether the city or the police are liable in circumstances where
they could stem or stop mob violence and prevent the ensuing property and
personal damage.  If there is no mob violence, then I would think there is no
liability.  But where there damage to body or property, cities and police are
accountable and bear liability.

Marci



In a message dated 4/3/2002 6:21:48 PM Eastern Standard Time,
tbwolff at UCDAVIS.EDU writes:

> It is indeed more efficient to arrest the speaker.  The First Amendment
> often requires the State to follow a less efficient path in favor of
> protecting speech.  This is certainly the case when the choice is between
> arresting a thug and arresting an unpopular speaker.  And, I wasn't seeking
> to distinguish Feiner on the facts, I was questioning its continuing
> vitality in light of Brandenburg, Edwards and other cases.
>
> As to the latter point, I think your assertion about police liability is
> quite debatable.  DeShaney pretty clearly stands for the proposition that a
> State's failure to provide protective services to its citizens is not a
> violation of the Due Process Clause.  If the police withheld protection for
> discriminatory reasons (e.g. disapproval of the speaker's message), that
> would be a very different matter.  But the mere failure of the police to
> act would not, I think, be a basis for liability.
>
>

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