First Amendment limits on Nazi March

[Howard Wasserman]

As to the first question:

The law in the Sixth Circuit  (Dean v. Byerley (6th Cir. 2004)) is that residential streets and sidewalks are traditional public forums, no different (in general) from commercial or business streets and sidewalks for forum analysis.  All that Frisby did was to approve one small limitation--no focused picketing on one house.  Frisby never has been interpreted to allow a blanket ban on picketing in a residential area.  And the Sixth Circuit actually has said that focused picketing on one house is permissible unless/until the government prohibits it.  So I do not believe the city could keep the march out of the neighborhood as a simple place restriction.

As to the second:

I think more recent cases would support the conclusion that the prior violence puts the city on notice of the steps it must take to increase security and keep the peace when the second march takes place.  The threat of violence (even based on past history) does not provide a basis for the city to deny the second permit.  Actually,  the city could try to argue that the prior violence supports keeping the march out of the residential areas for security purposes--just as New York City was able to keep protesters away from the Garden during the Convention in 2004.  But that was about large crowds and "national security;" the argument may not wash on the smaller scale with which we seem to be dealing.  Plus, 

This lends support to some of the recent scholarship arguing for more rigorous scrutiny of restrictions on place.  The Nazis chose this neighborhood as the site for the march for a reason, as part of their message.  To move them is to affect their message.



Howard M. Wasserman
Assistant Professor of Law, FIU College of Law
University Park, GL 464
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
SSRN Author Page: http://www.ssrn.com/author=283130

  ----- Original Message ----- 
  From: Zietlow, Rebecca E. 
  To: conlawprof at lists.ucla.edu 
  Sent: Wednesday, October 19, 2005 9:38 AM
  Subject: First Amendment limits on Nazi March


  Dear all,

  Some of you may have heard that there was a riot here in Toledo last weekend after a group of Nazis planned a march in a residential neighborhood with a recent history of racial tension.  The Nazis did not participate in the riot, but it grew out of a counter-demonstration.  In fact, shortly before the march was scheduled to start the police told the Nazis that they could not march because the situation had already become violent.

  Of course, the Nazis had a First Amendment right to march, but the question is whether they have a right to march in a residential neighborhood.  Could the city have required them to march on a commercial street, or even in a downtown location as a reasonable time place and manner restriction?  It seems to me that protecting the privacy of the home would weigh in favor of this type restriction (as it did in Frisby v. Schultz), but I don't know if that would be enough to justify it.  What do others think?  

  My second question is, the Nazis are saying that they want to come back and march again.  What relevance, of any, does the violent reaction of the residents the first time have on the city's power to regulate the second planned demonstration?  (In other words, does Feiner help the city at all or is it completely discredited by the civil rights case like Cox v. Louisiana?)


  Rebecca E. Zietlow 
  Charles W. Fornoff Professor of Law and Values
  University of Toledo College of Law 
  (419) 530-2872 
  rzietlo at utoledo.edu <mailto:rzietlo at utoledo.edu>  

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