The First Amendment during this war

[Volokh, Eugene]

	Well, it seems to me that much depends on the circumstances; for
instance, respecting private property owners' requests to evict people
whom they don't want is different from selectively removing people who
were out on a public sidewalk.  If we have a specific incident (such as
the Bursey case that was noted in a recent message), that might make it
easier to discuss the matter.  I'm sure there have been some improper
restrictions in some such cases; but I think some other complaints have
been somewhat overstated.

	Eugene

> -----Original Message-----
> From: Timothy Zick [mailto:zickt at stjohns.edu] 
> Sent: Monday, January 09, 2006 9:52 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Re: The First Amendment during this war
> 
> 
> 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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