The First Amendment during this war

[Volokh, Eugene]

	I much appreciate Allen's pointer, which led me to read the ACLU
report.  Here's roughly what I found, and I think it's entirely
consistent with my view that the federal government has not generally
done much to restrict First Amendment-protected speech:

	1.  Twelve incidents in which local police (one incident
involved D.C. police) allegedly misbehaved towards protesters (in some
cases) or the city officials had overly restrictive protest permit
rules.  Most involved anti-war demonstrations, some involved
anti-Bush/Cheney demonstrations (including two outside Bush or Cheney
rallies or fundraisers), and one involved a protest against Israeli
actions in Jenin.

	2.  One incident of the FBI "question[ing] a faculty member and
campus organizer at the University of Massachusetts in Amherst," with no
details on the questioning; it's hard to tell whether this federal
government action was legitimate or not.

	3.  One incident in which the Secret Service and local police
asked a college student about possible links to Afghanistan or the
Taliban, apparently because of a poster she had put up criticizing
President Bush.  Based on the ACLU's account, this sounds like improper
conduct, though probably not unconstitutional.

	4.  One college "speech zones" policy; the complaint sounds
well-founded, but from the report seems unrelated to antiwar speech.

	5.  A report that the ACLU filed an amicus brief opposing a
private lawsuit against the organizers of a pro-Palestinian conference;
the lawsuit sounds like it was frivolous, and the relevant state actor
(the University of Michigan) had been defending the conference
organizers.

	6.  Two incidents of restrictions on antiwar speech in private
malls.

	7.  One incident of local police attempt to restrict a *nude*
antiwar demonstration; I have no reason to think that the police were
going after these people because they were antiwar, rather than because
they were going to be nude.

	8.  One incident of the General Services Administration
restricting demonstrations generally in the Federal Plaza in Chicago.
The ACLU originally filed its suit in May 2001, but after 9/11 amended
the complaint to challenge the GSA's closing the plaza to demonstrations
altogether.

	9.   Three incidents of designated protest zones at three
Presidential visits, about which the ACLU is "considering legal action."

	10.  One incident of local police moving anti-Bush protesters --
but not Bush supporters -- from the streets surrounding a Bush visit.
	
	11.  One incident of local police planning to search marchers
before letting them gather at the entrance to a military base.  The
marchers were planning to protest the training of Latin American
soldiers; the marches were annual, and had begun before 2001.

	12.  One incident of schools suspending teachers and guidance
counselors for posting anti-war materials on the walls of the classrooms
in which they taught, and (in the counselor's case) his office.  That
strikes me as likely constitutionally permissible, because a K-12 school
generally has the right to control what's posted on its walls.

	13.  One incident of schools restricting a student's wearing of
an anti-Bush T-shirt.

	14.  Two incidents of local officials coming down on local store
owners for anti-war and pro-bin-Laden speech.

	15.  One incident of the Denver police monitoring peaceful
protests.

	16.  One incident of TSA officials leaving a hostile note in the
bag of someone who had packed anti-war signs.  (The bag was apparently
searched in the ordinary course of business.)

	Some of these incidents certainly involved constitutional
violations; some possibly involved constitutional violations; some
probably didn't involve constitutional violations; some certainly
didn't.  I'm glad the ACLU is watching out for this stuff.  But very few
of these involved federal violations (the subject of my original post);
and the state and local action, while meriting condemnation in many
cases, hardly shows much of a "threat[ to] the underpinnings of
democracy itself."  None remotely approaches the hypothetical attempt to
enjoin the publication of a New York Times story, which prompted my
original post.

	Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of AAsch at aol.com
Sent: Monday, January 09, 2006 10:34 AM
To: conlawprof at lists.ucla.edu
Subject: Re: The First Amendment during this war


See also the many incidents chronicled in the ACLU's May 2003 report
titled "Freedom Under Fire: Dissent in Post-9/11 America," available in
PDF format at:

http://www.aclu.org/FilesPDFs/dissent_report.pdf

Here are the last two paragraphs of the conclusion:

"The responses to dissent by many government officials, as described in
this report, so clearly violate the letter and the spirit of the supreme
law of the land, that they threaten the underpinnings of democracy
itself.

Hostility toward dissent should alarm us all. Government officials and
political leaders must not be allowed to chill the free and robust
debate that has made our way of life the envy of nations and our
Constitution a beacon to the world."

Allen Asch

In a message dated 1/9/2006 10:21:21 AM Pacific Standard Time,
siegel at law.law.sc.edu writes:
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