Require candidates for higher office to pay for police security?
mtushnet at law.harvard.edu
Wed Dec 16 21:16:16 PST 2009
There are several questions here that need to be kept separate. (1) Assuming that we have determined an appropriate baseline, can those who engage in "first Amendment" activities be charged a cost-justified fee for the costs they impose in excess of that baseline? The Ringling Brothers example suggests that with respect to money-making entertainment (a First Amendment activity in some sense), the baseline is the ordinary costs of cleanup due to the everyday activities of life. (2) Is it possible to determine a cost-justified fee in principle? There's an interesting Ninth Circuit case involving the city of Long Beach that says that doing so is possible, although the ordinance at issue there was invalidated on other grounds; there's a Seventh Circuit case suggesting that determining a cost-justified fee is in principle impossible. (3) Assuming that it is possible to determine a cost-justified fee, can it be imposed in advance? The uncertainties involved suggest strongly that the answer is No, but I wonder about a system in which the city goes through the calculation and then requires that one-half (one-third, etc.) be paid in advance, to be credited against the post-event calculation of actual costs (and refunded if the post-event calculation so warrants).
And, of course, (4) with respect to "pure" First Amendment activities, do we set the baseline where we do in the Ringling Brothers case, and if not, where do we set it? The post below suggests that the "baseline" for such activities should be the actual costs imposed, but I would need more of an explanation for that baseline than has been offered, to be comfortable with it. The example I use in class is a relatively well-heeled group organizing a pure First Amendment demonstration on climate change legislation -- for or against, it doesn't matter to me. Assuming that they can afford to pay (some portion of) the excess cleanup costs, as Ringling Brothers would be required to, why shouldn't the city be allowed to collect? And if the underlying assumption is that demonstrators who can't afford to pay the fees can't be barred from demonstrating (while those who can afford to pay will have to do so and perhaps post a bond or pay some portion in advance), we're really talking about wealth issues embedded in a discussion of the First Amendment. (Fine by me, of course.)
William Nelson Cromwell Professor of Law
Harvard Law School
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile)
From: conlawprof-bounces at lists.ucla.edu on behalf of Robert Sheridan
Sent: Wed 12/16/2009 11:59 PM
To: CONLAWPROFS professors
Subject: Re: Require candidates for higher office to pay for police security?
Well, part of the problem is that to bill in advance is to require a
prognostication as to how much furor the speaker might create. Lincoln
speaking at Cooper Union in NYC is one thing, but his speaking below the
Mason-Dixon line, in his time, would have been somewhat different.
Likewise as to our anti-Vietnam war demonstrators in an earlier era.
The question of advance billing for the exercise of Constitutional
rights goes more to tomorrow's speakers, where we don't enjoy the
hindsight. Either the Constitution protects expression, and speakers,
or it doesn't. I can see billing Ringling Bros. for cleaning up after
the circus parade (advertising) through town, but not Mario Savio for
agitating his fellow students of the Free Speech Movement on the
Berkeley campus in the 'Sixties.
One of the great practices that the Vietnam War era encouraged at long
last was that of some police departments to recognize that when the
president visits and his supporters and opponents wish to demonstrate,
the better practice is to cordon off demonstration areas for each to do
their thing w/o coming into violent contact w/ one another.
Mark Tushnet wrote:
> 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?
> 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?
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can
> (rightly or wrongly) forward the messages to others.
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the Conlawprof