First Amendment limits on Nazi March

Wed Oct 19 10:46:58 PDT 2005

In a growing number of contexts "security" has been used to justify
rather severe limitations on public speech activity.  Indeed, almost
anywhere there is protest or demonstration we see things like
free-speech and speech-free zones.  The most prominent, indeed
unforgettable, example was the speech pen constructed to contain
potential demonstrators at the Democratic National Convention in Boston.
Secret Service and local officials were involved.  The rationale for the
cage, accepted by both the district court (which memorably described the
cage as "a space redolent of the sensibility conveyed in Piranesi's
etchings published as Fanciful Images of Prisons") was the possibility
of violence.  "Security" has become the justification of choice in many
contexts, whether of local or national concern.

For those who might be interested, I have been pursuing the issue of
place and public speech in a series of articles, see Speech and Spatial
Tactics, 84 TEXAS L. REV. -- (forthcoming 2006); Space, Place, and
Speech:  The Expressive Topography, 74 GEO. WASH. L. REV. --
(forthcoming 2006); Property, Place, and Public Discourse, 21 WASH. U.
J. L. & POL'Y -- (forthcoming 2006) (Symposium on "The Rehnquist Court
and Free Speech").  

Tim Zick
Associate Professor of Law
St. John's University School of Law
SSRN Author Page:  
http://www.ssrn.com/author=332415

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Zietlow, Rebecca
E.
Sent: Wednesday, October 19, 2005 1:10 PM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: First Amendment limits on Nazi March

Thanks to both for your informative responses.  I an glad that Howard
mentioned the severe limitations on political demonstrations during the
conventions, because those occurred to me as well.  I take it that the
reason why demonstrators were so limited during both conventions was
"national" security and "local" security just wouldn't be a sufficient
justification for limiting the Nazis?  

By the way, Howard is correct that the location was part of the Nazis
message.  They claimed to be responding to a race based dispute between
neighbors in that neighborhood.  This incident has 
likely heightened racial tension in that neighborhood, which was part of
the Nazis' purpose.

Rebecca

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Volokh, Eugene
Sent: Wednesday, October 19, 2005 12:24 PM
To: conlawprof at lists.ucla.edu
Subject: RE: First Amendment limits on Nazi March

	In fact, Frisby itself pointed to the availability of marches
through a neighborhood as an alternative channel of communication that
made the residential picketing ban permissible:  "[I]n our view the
ordinance is readily subject to a narrowing construction that avoids
constitutional difficulties. Specifically, the use of the singular form
of the words "residence" and "dwelling" suggests that the ordinance is
intended to prohibit only picketing focused on, and taking place in
front of, a particular residence. . . .  General marching through
residential neighborhoods, or even walking a route in front of an entire
block of houses, is not prohibited by this ordinance.  Accordingly, we
construe the ban to be a limited one; only focused picketing taking
place solely in front of a particular residence is prohibited.  So
narrowed, the ordinance permits the more general dissemination of a
message. As appellants explain, the limited nature of the prohibition
makes it virtually self-evident that ample alternatives remain."  This
seems to suggest (though, I realize, not expressly hold) that if this
alternative of "general marching" were foreclosed, the law may would
indeed at least ose "constitutional difficulties."

	Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Howard Wasserman
Sent: Wednesday, October 19, 2005 8:38 AM
To: Zietlow, Rebecca E.; conlawprof at lists.ucla.edu
Subject: Re: First Amendment limits on Nazi March

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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