First Amendment and tort law -- a twist

[Mark Tushnet]

I interpolate comments/answers to Mark Scarberry's questions.

Is a government subsidy involved when the government enforces 
the law to protect those who are vulnerable or likely to be victims 
of lawless conduct (with a resulting higher cost of law 
enforcement for protecting them than for protecting those who do 
not need protection)?

MT:  I would think, "Yes," at least where the increase in the risk of 
victimization results from choices by the potential victim and the 
potential victim can reduce the risk of victimization by other 
choices, such as hiring security guards.

Or is that just a cost of providing an environment in which rights 
can be exercised equally by those who wish to exercise them?

MT:  The notion of "exercised equally" here must be a disparate 
effect notion, which, ion general, signals that there is indeed a 
subsidy involved.

I suppose another way to ask the question is that, if the 
government wishes citizens to behave lawfully, may the 
government impose on the unpopular speaker the cost of 
preventing the lawlessness by requiring him or her either to be 
silent or to pay for added police? 

Suppose the government just said, "Well, you can have your 
march, and we'll have the regular police presence that we'd have 
for any other group, and if there is violence we'll do what we 
always do when violence occurs--we'll call for backup and we'll do 
the best we can to protect law abiding citizens. Of course the 
backup may get there too late to save you from being beaten up." 
If that is the government's uniform position with regard to marches 
of all kinds for all causes, does it violate the 1st Am? 

MT:  Again FWIW, this is the precise example that elicits the 
student reaction I reported -- that saying that the government's 
decision violates the First Amendment describes a -- to the 
students -- troubling form of public subsidy to speech.  (Could the 
government charge demonstrators a cost-justified fee for the 
excess clean-up costs associated with litter after a demonstration 
["excess" here meaning, as in Mark S's example, the costs 
beyond those the government would ordinarily bear for cleaning 
up the locale overnight, when there was no demonstration there]?  
My students' instinct is, "Yes," particularly when I say that the 
demonstration is organized by Ross Perot.  [And when it's not, 
that is, when the demonstrators establish that they can't pay the 
excess clean-up costs, and students say, "Taxpayers have to 
pay those costs," the subsidy is obvious.]  How are excess 
security costs different?)
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