August 18, 2004
Private: "Free-Speech Zones" Balancing First Amendment Rights with Government Interests
Column By Jeffrey Jamison, Blog Editor
During a demonstration at the 1984 Republican National Convention, Gregory Lee Johnson was arrested for burning an American flag. Johnson's conviction for desecrating a venerated object was eventually overturned by an appeals court. The Supreme Court, in affirming the appeals court's decision, declared "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." While the Court has continually held that the content of a protestor's speech is virtually beyond reproach (there are always exceptions to the rule), it has also held, with equal vigor, "even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." "Free-speech zones," like the one employed at the 2004 Democratic Nation Convention (DNC) in Boston and ones planning to be used during the 2004 Republican National Convention (RNC) in New York, are a product of these restrictions. These "free-speech zones" are the source of considerable controversy as critics, from across the political spectrum, question whether they serve a legitimate, significant government interest or are an infringement upon our First Amendment rights. This is where the "free-speech zone" debate lies, where does government interest begin and First Amendment rights end?
"Free-speech zones" were first introduced, according to Nicholas Riccardi of LA Times, during the 1992 Presidential Conventions, but under the more fitting label of, "protest zones" (a rose by any other name...). The "free-speech zones" associated with the 2004 Republican and Democratic National Conventions have drawn considerable indignation from a variety of critics. Donna Lieberman, executive director of the New York Civil Liberties Union, argues, "[t]he notion of a free-speech zone is sort of oxymoronic. What it belies is the converse, which is the no free-speech zone, which is everything but." Dahlia Lithwick, in her New York Times guest column, declared the "'free-speech zone' at the Democratic convention in Boston last month was an affront to the spirit of the Constitution. The situation will be only slightly better when the Republicans gather this month in New York." The Dayton Beach News-Journal opined, "[a]t the Democratic National Convention...protesters [were] being corralled in 'free-speech zones' that are nothing less than holding pens...Protesters [were] essentially out of sight of the convention hall, segregated both geographically and physically by concrete and chicken-wire barriers, with train tracks on two sides and a side street on the third. They'll be similarly corralled away from Madison Square Garden when the Republican National Convention kicks off in New York City Aug. 29" (click here and here for pictures from the Boston "free-speech zone"). Lawsuits filed in both Boston and New York (more will be potentially filed in New York as the convention nears) argued that the use of these "free-speech zones" was overly broad, denying demonstrators their right, "to be within sight and sound of their intended audience, in this case, the delegates on their way into the Convention." Representatives of the protestors added that the use of "pens" or "free-speech zones," especially as designed in Boston and New York, were "a dangerous practice designed to prevent people from exercising their free speech and assembly rights."
Defenders of these "free-speech zones" argue that they serve to promote the significant security interests of the government. George Henderson, Assistant U.S. Attorney, defended the Boston "free-speech zone" arguing that, unlike traditional events held at the site of the 2004 DNC, "[w]e think the security risks and the people who are going to be in this convention are different...We have greater risks, we have very high people in government, and the need for good protection is very important.'' Police officials in New York claimed, as reported in Judge Sweet's opinion, that the use of "pens" for protestors was essential to the city's crowd control and safety interests.
Judges in both the New York case, Stauber v. New York- 03 Civ. 9162 (RWS), and the Boston case, Bl(a)ck Tea Society v. Boston- Civ. 04-11608-DPW and 04-2002, lamented the "delicate balance" between government interests and the First Amendment interests of free speech, "[t]hat balance is of particular importance to citizens and their government in times of heightened political tension and threatened challenges to public safety." Judge Lipez stated in her concurring opinion, "The DNC [was] the first national political convention to be held following the September 11, 2001...in light of recent experience with such events, the Secret Service and the Boston Police Department  developed extraordinarily stringent security measures in connection with it...The risks of violence and the dire consequences of that violence seem more probable and more substantial than they were before 9/11. When judges are asked to assess these risks in the First Amendment balance, we must candidly acknowledge that they may weigh more than they once did."
In the end, it was a spilt decision. Judge Sweet, in New York, found that the New York Police Department's "current policy or practice of using pens at demonstrations is an insufficiently narrowly tailored time, place or manner restriction because it unreasonably limits the movement of demonstrators." In Boston, Judge Woodlock, declared in open court, "I, at first, thought before taking the view that the characterizations of the space as being like an interment camp with litigation hyperbole. I now believe that it's an understatement. One cannot conceive of what other elements you would put in place to make a space more of an affront to the idea of free expression than the designated demonstration zone." Judge Woodlock, however, ultimately held, citing violent protests of recent memory and new terrorist threats following 9/11, "[t]hat particular festering boil (the 'free-speech zone') satisfies the First Amendment responsibilities of the City in this environment...But it is surely offensive to the spirit of the First Amendment." Legitimate disagreement and debate likely will to grow over the use and manner of "free-speech zones" and related security measures during Presidentially designated events of "national significance," such as Presidential Conventions and Inaugurations, major international summits held in the United States, and special events such as the Superbowl and Olympic Games held on US soil. Considering the violent actions of both protestors and government officials at similar events in Seattle, Philadelphia, and Miami and increased terrorist threats following 9/11, it is becoming increasingly difficult to definitively define, during events "national significance," where government interest begins and First Amendment rights end.
But what about the use of "free-speech zones" at events that have not been given the official designation of "national significance?" Free speech advocates from both the left and the right have uniformly condemned the seemingly unreserved use of "free-speech zones" to suppress political protests and dissent at events which do not rise to the level of "national significance." The American Conservative writes, "[w]hen [the president] travels around the United States, the Secret Service visits the location ahead of time and orders local police to set up 'free speech zones' or 'protest zones' where people opposed to [the president's] policies (and sometimes sign-carrying supporters) are quarantined. These zones routinely succeed in keeping protesters out of presidential sight and outside the view of media covering the event." The Progressive claims that, due to these actions, "[i]n many places across...America, you may be losing your ability to exercise your lawful First Amendment rights of speech and assembly. Increasingly, some police departments, the FBI, and the Secret Service are engaging in the criminalization--or, at the very least, the marginalization--of dissent. Anthony Romero, executive director of the ACLU, maintains, "[w]e have not seen such a crackdown on First Amendment activities since the Vietnam War," The ACLU reports, while these types of measures began with in the 1980's with some, "instances of interference with protesters during the Reagan administration, and even at President Clinton's inauguration[-]an attempt was made (unsuccessfully, thanks to ACLU intervention) to bar anti-abortion protesters from the inaugural march," "[s]uch incidents have spiked," following 9/11/01.
On September 2nd, 2002, Labor Day, 65-year-old retired steel worker Bill Neel was arrested while trying to attend a speech by President Bush. Mr. Neel carried a sign stating, "The Bush family must surely love the poor, they made so many of us." The Secret Service requested that he move to a "designated free-speech zone" a third of a mile from the speech and when he refused, he was arrested by the local police for disorderly conduct. The district judge ultimately dismissed the case, stating "this is a critical time because of 9/11, but I do not believe this rises to the charge of disorderly conduct." Mr. Neel's experience is not unique. The ACLU has documented 12 examples of the use "free-speech" zones to quell protest.
An important unifying factor surrounding these incidents is that only protestors, and not supporters or spectators expressing no apparent viewpoint, are being ordered to move to "free-speech zones" and/or arrested. It was reported when, "President Bush came to St. Louis on January 22, 2003, to tout his economic plan, one woman with a 'We Love You President Bush' sign was allowed to stand near the building where the President was speaking. But Andrew Wimmer, who was standing next to her, was arrested for holding a sign saying 'Instead of war invest in people.'" This leaves one wondering, where is the significant, legitimate government interest in confining and/or arresting peaceful protestors, while respecting the First Amendment rights of apparent supporters and spectators expressing no viewpoint? Couldn't an individual, wishing to threaten the security of the President, and in turn our nation, merely act like an uninterested spectator? Further, John Harrison, Professor at University of Virginia, reminds us that these actions are additionally unconstitutional because they are not content neutral, "[w]hat they cannot do is discriminate on the basis of content. The decisions must be content neutral." Chris Hansen of the ACLU states, "[t]he Secret Service and local police violate the rights of protesters by moving people expressing views critical of President Bush away from him while those with pro-Bush views are allowed to remain close. It is unconstitutional for the Secret Service to restrict access on the basis of viewpoint." Secret Service agent Brian Marr attempted to define the government's interest during an interview with NRP in December of 2003, "[t]hese individuals may be so involved with trying to shout their support or nonsupport that inadvertently they may walk out into the motorcade route and be injured. And that is really the reason why we set these places up, so we can make sure that they have the right of free speech, but, two, we want to be sure that they are able to go home at the end of the evening and not be injured in any way."
Though ACLU has filed a complaint challenging the use of "free-speech zones," in this manner, it is not certain, in this post 9/11 world, how the courts will determine where a significant government interest begins and out First Amendment rights end. One would hope that the courts would step in to protect Bill Neel's First Amendment rights, as they did in Gregory Johnson's case, but Americans have come to understand that, through the history of this nation, wars often lead to the limited curtailing of certain liberties. Findlaw's Julie Hilden contends, "[i]f rights are to be infringed in the 'war on terrorism,' then First Amendment rights should be last on the list." John Ashcroft, on December 10, 2001, cautioned protestors and critics, "to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists-for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil." Libertarian James Bovard warns, "Is the administration seeking to stifle domestic criticism? Absolutely. Is it carrying out a war on dissent? Probably not-yet. But the trend lines in federal attacks on freedom of speech should raise grave concerns to anyone worried about the First Amendment."