The First Amendment during this war

[Volokh, Eugene]

	Thanks to Andy's pointer, I read Bursey; and while he doubtless
knows more about the factual details of the case than I do, the Fourth
Circuit opinion doesn't leave me terribly troubled.  Bursey was
convicted (and fined $500) for violating a federal statute that bars
people from entering or remaining a restricted area of the grounds where
the President is or will be temporarily visiting.  The President had
flown in for a Republican Party rally.  Bursey showed up to protest.
Bursey came to a restricted area set up by the Secret Service when
people (including those invited to the rally, who were waiting in line
with tickets) were about to be cleared.  The public was cleared, the
restricted area was shut down, the police gave him a final ultimatum to
leave, but Bursey didn't leave.  That doesn't strike me as terribly
disturbing, though perhaps I'm mistaken.

	Eugene

> -----Original Message-----
> From: Andy Siegel [mailto:siegel at law.law.sc.edu] 
> Sent: Monday, January 09, 2006 10:20 AM
> To: Timothy Zick; conlawprof-bounces at lists.ucla.edu; Volokh, 
> Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Re: The First Amendment during this war
> 
> 
> There is a case arising out of an incident at a rally in 
> Columbia, SC that is particularly 
> distrubing.  For a good article on the subject, see 
> http://www.slate.com/id/2107012/fr/rss/.
> 
> The criminal conviction in this case was upheld by the Fourth 
> Circuit in an opinion 
> that avoided the central issues by reading the factual 
> findings below very broadly and 
> dubiously insisting that crucial issues had been waived on 
> appeal.  The case is 
> currently pending before the Court on a petition for a writ 
> of certiorari, but the posture 
> of the case makes cert. extremely unlikely. 
> 
> --Andy Siegel
> 
> On 9 Jan 2006 at 12:51, Timothy Zick wrote:
> 
> > 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
> > 718-990-6633
> > zickt at stjohns.edu
> > 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> > Sent: Monday, January 09, 2006 11:57 AM To: 
> conlawprof at lists.ucla.edu
> > 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.
> > 
> >  Eugene
> > 
> > > -----Original Message-----
> > > From: wasserma at fiu.edu [mailto:wasserma at fiu.edu]
> > > Sent: Monday, January 09, 2006 8:16 AM
> > > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > > 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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