The First Amendment during this war

Timothy Zick zickt at
Mon Jan 9 09:51:55 PST 2006

I'm afraid much of the information on this is anecdotal, but there were
allegations (and some lawsuits as I recall) in which the Secret
Service's policies on crowd control were challenged.  For instance, a
person with a sign that said something unflattering to the President was
removed from the area the President was to occupy, while others with
supportive signs were allegedly permitted to remain in the area.
Someone with an unflattering t-shirt was also alleged to have been told
by the Secret Service that he could not stand near the President's
motorcade.  Now, I suppose the Secret Service would maintain that this
person, and others like him, posed a "security concern."  Finding out
what that concern actually is would be most difficult, if not
impossible.  And a judge is, of course, not likely to second-guess the
Service with regard to such matters.  I also seem to recall reports that
at a campaign event in Pennsylvania, demonstrators were confined, again
by law enforcement personnel allegedly including the Secret Service, to
a "speech zone" some distance from the campaign event.  If the
authorities decided who was to go in the zone, and who could remain near
the event and cheer the candidate on, then I would think serious
content/viewpoint concerns would arise.    

Tim Zick       
Associate Professor of Law
St. John's University School of Law
zickt at

-----Original Message-----
From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
Sent: Monday, January 09, 2006 11:57 AM
To: conlawprof at
Subject: RE: Re: The First Amendment during this war

	I don't quite know what being controlled by the White House
would mean in this context, but as I understand it the Secret Service
provides security at all Presidential speeches, whether the event is
Party-controlled or not.  I agree that there may sometimes be a
distinction between the President speaking at a Republican Party event
-- or for that matter at an event controlled by any private group -- and
the President speaking at a formal governmental occasion (the State of
the Union address, I suppose, would be the paradigm example, though
there the audience is even more carefully chosen -- albeit generally
bipartisan -- than at a typical rally).  In the latter case, one might
characterize the audience as something akin to a nonpublic forum; in the
former, the event is a private event, and there's no state action in
exclusion of people (in fact, the organizers may have a constitutional
right to select the audience).  I know many of the complaints about
exclusion of protesters involved such private-organization-organized
events, but I'm not sure whether all did; if someone has a concrete
example, it might be helpful to lay out its details.


> -----Original Message-----
> From: wasserma at [mailto:wasserma at] 
> Sent: Monday, January 09, 2006 8:16 AM
> To: Volokh, Eugene; CONLAWPROF at
> Subject: RE: Re: The First Amendment during this war
> [snip]
> > 	It seems to me that the Administration is entirely 
> entitled to make 
> > sure that Presidential speeches are given only to friendly 
> audiences, 
> > when the speech is either on private property, or on public 
> property 
> > that has been leased by a private organizations (such as some 
> > Republican Party organization).  Such limitations may be foolish, 
> > unduly defensive, or whatever else, but they're surely not First 
> > Amendment violations, and it seems to me not even much of 
> an intrusion 
> > on "First Amendment values" writ larger (though I realize that 
> > there'll inevitably be disagreement about the latter point).
> I think it should be different when it is the President 
> speaking as President to 
> the public (or a portion of the public) on some issue of 
> public policy in a 
> space that is controlled by the White House and the Secret 
> Service (as 
> opposed to, for example, a Republican Party fundraiser or a 
> campaign event).  
> It seems a core example of viewpoint discrimination to say 
> that someone 
> cannot be in the audience for a public event because of how 
> that person 
> previously voted or that person's views about what the 
> President is going to 
> say.  Even if we call the audience a non-public forum, the 
> rules still cannot be 
> grounded on viewpoint.  There are, I believe, other, neutral 
> rules that can be 
> put in place to ensure that protesters do not prevent the 
> President from 
> speaking.
> Howard Wasserman
> FIU College of Law
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