First Amendment limits on Nazi March
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Oct 19 22:35:46 PDT 2005
Sounds like a principle that would be pretty badly in need of cabining,
since lots of speech can be said to be vaguely intimidating. (Talk of
revolution and punishing the capitalist oppressors might be one
example.)
But in any event, as a doctrinal matter, how would one fit NAACP v.
Claiborne Hardware into this? Seems to me the speech there was likely
to be considerably more intimidating to those who chose not to comply
with the boycott -- especially when Evers' speech was seen against the
backdrop of some violence against noncompliers, and coupled with the
Black Hats taking down the names of people who weren't complying with
the boycott and then reading the names in church -- than the speech of
the few Nazis in this case would have been to the residents of the
neighborhood.
Eugene
-----Original Message-----
From: Zietlow, Rebecca E. [mailto:RZietlo at UTNet.UToledo.Edu]
Sent: Wednesday, October 19, 2005 7:06 PM
To: wasserma at fiu.edu; John Parry; Volokh, Eugene;
conlawprof at lists.ucla.edu
Subject: RE: Re: First Amendment limits on Nazi March
I'm interested in knowing whether folks have any thoughts about
the intimidation aspect of the Nazi march. Argument: They chose this
neighborhood to intimidate the folks who live there. Of course,
Brandenburg sets the bar really high, but does the recent cross burning
case have any relevance here (brown shirt like a burning cross)?
Rebecca
________________________________
From: wasserma at fiu.edu [mailto:wasserma at fiu.edu]
Sent: Wed 10/19/2005 2:34 PM
To: John Parry; Zietlow, Rebecca E.; Volokh, Eugene;
conlawprof at lists.ucla.edu
Subject: Re: Re: First Amendment limits on Nazi March
That argument is, at least right now, foreclosed by Boos v.
Barry (which stated
that reactions to speech (there, it was offense and hurt
feelings of a foreign
nation) were not secondary effects) and Forsyth County v. The
Nationalist
Movement (which stated that violence or the threat of violence
in response to
speech of a neo-Nazi group is not a secondary effect). I do not
think the City
of Toledo could prevail on this argument as to responsive
violence in trying
to deny the Nazis a new permit.
But note a slightly different version of the argument that may
be applicable in
large protest situations. The public-order concern often is not
a concern that
listeners will respond violently a la Fiener (e.g., no one was
really worried that
a Democratic delegate was going to punch a protester), which was
the stated
interest (rejected by the Court) in Boos and Forsythe. Rather,
it is that some
within the crowd of protesters will behave violently on their
own, thus
government is justified in zoning them off into a confined
area--just as we
do with the viewers at adult theatres (or adult theaters).
Framed that way,
violence starts to look more and more like a secondary effect.
Prof. Parry's concern for Renton becoming the new paradigm
reflects Justice
Brennan's objections to the secondary effects doctrine. That
was, in part, why
Brennan did not join the majority in Boos. He categorically
objected to the
secondary effects doctrine in the context of political speech.
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
>
> From: "John Parry" <parry at lclark.edu>
> Date: 2005/10/19 Wed PM 01:36:03 EDT
> To: "Zietlow, Rebecca E." <RZietlo at utnet.utoledo.edu>,
> "Volokh, Eugene" <VOLOKH at law.ucla.edu>,
<conlawprof at lists.ucla.edu>
> Subject: Re: First Amendment limits on Nazi March
>
> This is somewhat tangential to Rebecca's queries, but I've
often wondered
> about the impact, if any, that first amendment zoning cases
(such as
Renton
> v. Playtime Theatres) have on political protest cases.
Protestors at
> political conventions and high-level meetings are increasingly
"zoned" into
> free speech areas. The threat of violence in these cases is
perhaps a
> secondary effect? If so, then why couldn't local security
concerns support
> containing a march within a particular area in other contexts?
>
> Is Renton threatening to become the core case on managing the
locations
in
> which people communicate when their communication is in some
way
threatening
> to public order? Political protest would then become the
functional
> equivalent of a dirty movie.
>
> I assume someone on the list has written about all of this,
and I'd be
> delighted to get citations to articles etc. as well as to hear
thoughts.
>
> P.S. Is it a general rule that "theatre" means porn, while
"theater" means
> any other kind of show?
>
>
>
> ********************************************
> John T. Parry
> Visiting Professor, Lewis & Clark Law School
> Associate Professor, University of Pittsburgh School of Law
> 503-768-6888
> parry at lclark.edu
> *********************************************
>
>
> ----- Original Message -----
> From: "Zietlow, Rebecca E." <RZietlo at utnet.utoledo.edu>
> To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>;
<conlawprof at lists.ucla.edu>
> Sent: Wednesday, October 19, 2005 10:09 AM
> 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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> To subscribe, unsubscribe, change options, or get password,
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