Require candidates for higher office to pay for police security?

[Mark Tushnet]

Although the link isn't to a story about the "proposed" policy, the "proposal" raises an interesting question -- which I've raised on the list before -- about how we go about setting the baseline in First Amendment cases.  One possibility is that the baseline is the ordinary level of police protection afforded anybody in the society going about his or her daily activities.  if so, we could require people to pay for protection above that baseline when they engage in riskier-than-average behavior (even if that behavior involves speaking).  They could pay either by hiring private security forces ("the market") or in special assessments for public services.  Alternatively, we could say that the First Amendment requires that we provide a subsidy to those people in the form of enhanced police protection.  (Should we provide that subsidy to people who could afford to pay for private security services?)  Another possibility is to set the baseline "indexed" to particular activities.  Then the question will be, How finely grained will our definition of the activities be?  "Speech" generally?  (In which case, for example, cities couldn't charge the major political parties fees for police services beyond those provided to -- and here again the baseline question intervenes -- meetings of equivalent size? ordinary citizens in their daily activities?)  "Unpopular" speech?  (In which case we'll need a definition -- is a demonstration against the increased troop commitment to Afghanistan "unpopular" speech when conducted in San Francisco?  New York?) I confess that I have no general account of where and how to set the baseline that satisfies anyone but me.  When I asked the equivalent of this question on an exam a few years ago, not a single student thought that the baseline ought to be the ordinary level of police protection afforded everyone in daily activities (which is my position, I sort of think). 

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu on behalf of Robert Sheridan
Sent: Wed 12/16/2009 9:32 PM
To: CONLAWPROFS professors
Subject: Require candidates for higher office to pay for police security?
 
http://tinyurl.com/yhopct6

Somehow I thought of you when I read this article on  pending San 
Francisco legislation purporting to require candidates for political 
office to pay for the security required to permit them to speak w/o 
being creamed, a la Premier Berlusconi, of Italy, who is still in the 
hospital, at last report, from being hit in the face by a statuette, 
thrown a madman.

Somehow, I'd imagined that it was my right to say unpopular things, 
especially political things, in public w/o being mauled or maimed, and 
that I had an equivalent and correlative right to expect my police 
department to come riding to the rescue, w/o my being billed, especially 
in advance, for the privilege.  Apparently the new police chief, from 
LA, sees things differently, to my utter surprise.

Wouldn't such a requirement amount to an advance form of the heckler's 
veto, something I understand is unconstitutional under Brandenburg?  
Terminiello?  Others?

rs


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