This morning Morning Feature will dig deeper into issues related to free speech. Yesterday we discussed cases of “public forum” free speech. Today we look at free speech at political events. (More)

The Tuesday Digging Deeper Morning Feature surveys an ongoing news topic through multiple sources to invite in-depth conversation. Please check back over the coming days for additional comments. This week’s Digging Deeper topic is free speech.

Yesterday we looked at a news story out of Seattle where a local group wanted to place controversial issue advocacy ads on the sides of the King County Metro buses and the outcry was such that the county cancelled the ad contract. The ACLU filed suit on behalf of the organization whose ads were cancelled.

I encourage you to read yesterday’s Morning Feature and the excellent conversation that ensued if you missed it.

The Seattle case is a “public forum” free speech case. The general First Amendment principle is that speech in a public forum (ads on a city bus, use of public broadcast facilities) can be limited by fees (ad costs, fee to use broadcast facilities), but the limits must be “content neutral.” That means government can’t choose which messages to allow in a public forum, except to prohibit non-protected speech such as pornography, incitement to riot, etc.

Today we are going to turn to a different type of protected free speech … free speech at political events.

This topic will be front and center as we move into the 2012 primary season and then into the 2012 general election next year.

The protest zones at political events are “time, place, and manner” free speech cases. The general First Amendment principle there is that government can make reasonable limits on the “time, place, and manner” of speech: visitors at the Capitol can’t walk up and demand to speak at the House podium, students can be told to keep quiet during classroom lectures, etc. The greater the general public’s access to the forum (e.g.: a town square or city park), the greater the government’s burden to show its “time, place, and manner” restrictions are reasonable. And again, the restrictions must be “content neutral;” you can’t allow supporters to chant and hold signs next to an official while forcing protesters to stand a mile away.

The Skokie Parade

Neo-nazi parade in Skokie Illinois:

In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court.

In his February 23, 1978 decision overturning the town ordinances, US District Court Judge Bernard M. Decker described the principle involved in the case as follows: “It is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear … The ability of American society to tolerate the advocacy of even hateful doctrines … is perhaps the best protection we have against the establishment of any Nazi-type regime in this country.”

The George W. Bush Years

Secret Service Ordered Local Police to Restrict Anti-Bush Protesters at Rallies, ACLU Charges in Unprecedented Nationwide Lawsuit

At events attended by President Bush and other senior federal officials around the country, the Secret Service has been discriminating against protesters in violation of their free speech rights, the American Civil Liberties Union charged today in the first nationwide lawsuit of its kind.

“”There is nothing more American than raising your voice in protest, and there is nothing more un-American than a government that attempts to hit the mute button when it doesn’t like what it hears,”” said Witold Walczak, Legal Director of the ACLU of Greater Pittsburgh and a member of the national ACLU legal team that filed today’s lawsuit.

The ACLU said it had seen a significant spike in such incidents under the Bush Administration, prompting it to charge officials with a “pattern and practice” of discrimination against those who disagree with government policies.

Nominating Conventions

2004 Democratic National Convention – Security:

During the convention, U.S. Capitol Police, the U.S. Coast Guard, and other governmental organizations took many security measures to protect the participants of the Democratic National Convention.[6] Security measures included bomb-sniffing dogs, 7-feet high metal barricades, a ban on corporate and private flights at the Logan airport, along with the shutting down of Highway 93.

One of the most controversial “counter-terrorism” measures was the declaration of a designated free speech zone for protesters, limiting where and when protesters could exercise their first amendment rights. Protesters through the American Civil Liberties Union mounted an unsuccessful lawsuit for the right to protest outside of the designated free speech zone, which the group claimed was unconstitutional.

2004 Republilcan National Convention – Security:

Like the 2004 Democratic National Convention in Boston, Massachusetts, the Department of Homeland Security (DHS) officially declared the 2004 Republican National Convention a National Special Security Event (NSSE). As such, the United States Secret Service was charged with employing and coordinating all federal and local agencies including the various bureaus of DHS, the FBI, and the NYPD to secure the venue from terrorist attacks. Expected security expenditures reached $70 million, $50 million of which was funded by the federal government.

The city employed an active beat of 10,000 police officers deployed as Hercules teams—uniformed in full riot gear and body armor, and equipped with submachine guns and rifles. Commuter and Amtrak trains entering and exiting Penn Station were scoured by bomb-sniffing dogs as uniformed police officers were attached to buses carrying delegates. All employees of buildings surrounding Madison Square Garden were subjected to thorough screening and background checks.

Protests at 2008 nominating conventions and lawsuit filed:

Political activists and legal groups are preparing to file multiple lawsuits against the cities and police departments of Denver and St. Paul because of their treatment of convention protesters.

Police used tear gas and pepper spray to disperse protesters outside the Republican convention last week. Political activists and legal groups are preparing to file multiple lawsuits against the cities and police departments of Denver and St. Paul because of their treatment of convention protesters. (Times Online/UK)The groups say protesters demonstrating against the war in Iraq and other issues in both cities were mistreated and their civil rights were violated.

The National Lawyers Guild of Minnesota is preparing multiple suits against authorities in St. Paul on behalf of protesters, according to the group. They say protesters were illegally detained and their First Amendment rights were violated.

“Over the course of the week people here in the Twin Cities saw a level of police repression that was unheard of for us,” said Jess Sundin, a spokesman for the Coalition to March on the RNC [Republican National Convention] and Stop the War. “But I was very impressed that people came out anyway and demonstrated tremendous strength and conviction.”

As a reminder, here are a few definitions from yesterday: What is freedom of speech?

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy, such as racism, sexism, and other hate speech are almost always permitted. There are exceptions to these general protection, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), interests in “fair” political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance (flag burning).

The public forum :

A public forum, also called an open forum, is open to all expression that is protected under the First Amendment. Streets, parks, and sidewalks are considered open to public discourse by tradition and are designated as traditional public forums. […] Public forums cannot be restricted based on content.

Free-speech zone:

Free speech zones (also known as First Amendment Zones, Free speech cages, and Protest zones) are areas set aside in public places for political activists to exercise their right of free speech in the United States. The First Amendment to the United States Constitution states that “Congress shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The existence of free speech zones is based on U.S. court decisions stipulating that the government may regulate the time, place, and manner—but not content—of expression.


Here are some questions to get us started, not in any order and not intended to be all inclusive:
1. What is the proper balance between safety for elected officials and public access to promote their point of view?
2. What is a reasonable enforcement zone? What is an unreasonable enforcement zone?

Please share your thoughts and additional links in the Comments.