Sorry, protestors can’t ignore decades of First Amendment history

As someone whoselivelihooddepends on the First Amendment, it can be irksome how this essential enshrinement of the four freedoms of assembly, the press, speech and exercise of religion is misinterpreted. Some of it can be a simple, yet gross misunderstanding where people like Hank Williams Jr. wrap themselves in the First Amendment to deflect criticism of their words by private people or companies.

Amid the nationwide series of Occupy protests and earlier efforts to disrupt BART mass transit in San Francisco, I’ve seen some well intentioned, if not fully informed assertions of the First Amendment, especially with regards to protestors claiming where and when they can protest. While there are (and should be) broad rights to protest and address government grievances in public spaces,people don’t have carte blanche. While the First Amendment is broadly written in the Bill of Rights, more than 70 years of Supreme Court rulings have defined the “public forum doctrine” where government agencies can set reasonable, content-neutral restrictions on access.

I first became interested in the current situation when the classic Occupy Wall Street group faced possible eviction from Zuccotti Park, ostensibly for cleaning. It was an interesting situation, especially with private ownership of what appears to be a traditional public forum (they’re apparently required to allow public access around the clock). It reminded me a bit of when the Church of Jesus Christ of Latter-Day Saints acquired part of Main Street in Salt Lake City and turned it into a plaza (with significant speech restrictions that didn’t apply to LDS representatives).

Ultimately, the “public forum doctrine” under the First Amendment generally allows agencies to set reasonable time, place and manner restrictions on access to traditional public forums, provided that these rules are content-neutral and narrowly serve a significant state interest. [“Perry Education Association v. Perry Local Educators’ Association,” 460 U.S. 37 (1983)]. The Supreme Court also held that a government may enforce a narrowly crafted content-based exclusion that’s vital to serve a compelling state interest (which is stricter than a significant interest).

Despite protestors’ claims, the public forum doctrine still applies. On Thursday, U.S. District Judge Morrison C. England Jr. ruled that Sacramento’s 3o-year-old overnight curfew in parks doesn’t violate protestor’s rights. According to the Sacramento Bee

Englandsaid the Sacramento ordinance “as drafted and applied” does not discriminate against the views of park occupiers, and it governs in a reasonable way the “time, place and manner” of demonstrations in all city parks.

As layman who has studied the First Amendment, I believe the public forum doctrine is sound and should be honored when it is applied fairly and equally. Looking at the Zuccotti Park situation and others, my questions would be: Are the current restrictions reasonable to an average person, do they serve a significant state interest and are they being applied equally to all?

Generally, I’m in favor of people maximizing their free speechrights (like in California shopping centers), but protestors don’t seem to have much ground to stand on if the law is being applied fairly.

About Ryan Olson

Ryan is living every week like it's Shark Week.
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5 Responses to Sorry, protestors can’t ignore decades of First Amendment history

  1. Ellis D.Finkle says:

    Our constitutional rights don’t mean anything anymore because there is a loophole for every law in the books. The government does what it wants when it wants and so do the police. We the people are free. Does that word mean anything to anyone anymore. I’m an intelligent human being and I don’t need the government to tell me how I can and can not live my life. I’d like to jail the police for being a mob. I’d like to throw the government to the sharks. Pigs. Impeding civil liberties. This will not end in peace.

  2. Mark says:

    Where in the constitution does it place limits on the right to assemble?
    This is a right to assemble, not a right to speech issue.

  3. Ryan Olson says:

    Are the two mutually exclusive? After all, the protestors are ostensibly assembling to express themselves.

    The text of the First Amendment doesn’t appear to expressly place any limits on any of the four freedoms, but court rulings have shaped how it’s applied over the years. And these rulings are important for example, the Bill of Rights applied solely to the federal government until rulings used the due process clause of the Fourteenth Amendment to apply the Bill of Rights to state and local governments.

    Although I’m a layman, the public forum doctrine still seems valid.

  4. Mark says:

    What is the specific state interest that could supersede the right to assemble in a unprecedented national action?

    I do not agree that right to assemble and the right to free speech are the same, which is funny to hear from a reporter. In the 18th century (when the Bill of Rights was written), it was a common practice to assemble outside of meetings that the community saw displeasure with, court proceedings for example, and the law would disband them not on the grounds they said something, but rather simply because of their presence.

    This constitutional freedom was granted to make what you propose illegal. There was no time limit was ever placed on the right to of the people to assemble to demonstrate their grievances with the government.

  5. Ryan Olson says:

    I should’ve been more specific I feel there’s a confluence of assembly and speech in this specific case (Occupy clearly has something to say and is trying to express itself with these gatherings). I appreciate your insight, but what do you say about the public forum doctrine that addresses gatherings on public property?

    I think the public forum doctrine is valid and a federal judge thinks so as well. While it is currently applicable, I’m not saying that it’s ironclad. What content-neutral grounds would you cite to overturn such a precedent?

    You had also asked which specific state interest applies. Wouldn’t it depend on a case-by-case basis? Various jurisdictions have different rules and may cite different reasons for enacting those regulations. Those may be challenged, of course, but there is well-established precedent to guide the courts in making a ruling.

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