All of these competing interests have led to the obvious question: where and how do the protections of the 1st Amendment come into play? This post will attempt to shed some light onto that issue. As always, the following post is intended as a very cursory outline of free speech rights and the limits of those rights. This should not be read as an academic study of the legal issues involved and I would caution any lawyers and law students against citing to this article.
We all know that the 1st Amendment to the US Constitution ensures that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Since the passage of the 14th Amendment, these prohibitions have been extended to all levels of state and local government, not just Congress.
While the text of the 1st Amendment reads like a blanket prohibition against any type of restrictions on free expression, it has not been interpreted that way by the courts. Obviously, some types of speech can be prohibited or limited. Blasting a car horn in a residential neighborhood at midnight to protest against water rate hikes, burning crosses on people's lawns to intimidate them, making criminal threats and lying on your taxes, for example, are all prohibited forms of expressive conduct.
Other types of reprehensible speech are plainly protected. Courts have upheld the right of the Ku Klux Klan to march through the predominantly Jewish community of Skokie, IL. Individuals in the US are free to tattoo their own faces with swastikas (this would be illegal in most parts of Europe). Profanity is also protected (except on broadcast TV and radio, but that's another issue). In the famous case of Cohen v. CA (403 U.S. 15), the court upheld a man's right to wear a jacket with the words "Fuck the Draft" emblazoned across the back. We're also free to lampoon our elected leaders and flip the middle finger to the police.
So where do we draw the line between protected and unprotected speech? Put very generally, the validity of speech restrictions turns on whether, by prohibiting certain expressive conduct, the government is essentially trying to silence an idea or whether they are attempting to place reasonable restrictions on the time, place and manner of that speech. The first step in any free speech analysis is to determine what exactly the government is trying to control: is it the idea itself or merely the manner in which the idea is being expressed?
When the government is attempting to silence an idea because the idea itself is inflammatory or offensive, any restrictions on that speech are going to be ruled unconstitutional almost every time. No matter how ugly a particular idea might be, the Framers of the Constitution intended for the value of that idea to be judged by the People themselves rather than by the State. That's why citizens are free to wave signs that say "God Hates Fags" and "Thank God for IEDs". No matter how stupid you might look engaging in these activities, the State has no right to silence your message.
On the flip side, the government MAY take reasonable measures to regulate the time, place and manner of expressive conduct. As mentioned above, you definitely have a right to protest against water rate hikes, but you may not do so by blasting your car horn at midnight in the middle of my neighborhood. The city may require permits for parades and demonstrations as long as those permits are issued without regard to the message of the demonstration. They might allow parades on certain streets at certain times of day and deny permission for parades on other streets in the middle of the night, as long as those rules are applied neutrally to everybody.
This brings us to the "Occupy" protests. Protesters have demanded the right to pitch tents overnight on public and private property while they raise awareness to economic disparities and various financial issues of public import. Local governments have tried (with mixed success) to evict the protests by citing laws against urban camping. Protesters have argued that their free speech rights are being trampled, and police have countered by arguing that tear gas burns like hell.
So who has the 1st Amendment on their side in the "Occupy" fight? That depends on whether the government is (A) suppressing an idea, or (B) enforcing reasonable rules regarding the time, place and manner of expressive conduct. In my eyes, the real question is whether or not the act of sleeping in a tent on a public sidewalk has expressive value in itself. If so, what message is being expressed by sleeping in these camps? If protesters were forbidden from sleeping in public, are other alternative channels available for protesters to express the same ideas? I don't have the answers to these questions, but I would invite readers to share their opinions in the "comments" section, below.
I think a major problem with the way courts interpret these laws, and the way they are enforced, is the complete neglect of the idea of property.
ReplyDeleteSome Occupiers have been forcibly evicted from private parks and private property (such as in one particular instance in NY, I believe). This has resulted in uproar from some Occupy supporters. However, unless we are all communists, private property is just that - it is private, and the owner should have the right to dictate the terms by which his or her property is used. What if Occupiers decided they disliked a particular guy living on their block, and decided to "occupy" his driveway, front lawn, or living room? That would not be acceptable because it is someone's private property.
This brings me to the government. Various city governments claim that certain city property is "public" but at the same time seek to impose various restrictions on Free Speech by reading "compelling interest" and "time, place, manner" regulations into the First Amendment that simply aren't in the text of the Constitution.
What does "public" property mean? Supposedly, it mean the public owns it. But if the public owns it, why can't someone camp out on the property over night? If I wanted to camp out in my own backyard, no one can stop me. There is no "compelling interest" test for whether I can tent in my own back yard. So why can someone stop me from tenting at city hall, if city hall is allegedly partially my property?
This is because public property isn't actually that which belongs to the public, even though the public pays for it. It is because it is really government property, and they can do whatever the hell they want.
No, sleeping in a tent probably isn't expressive activity. But being prohibited from tenting is not the only abuse, and certainly not the most egregious abuse that has been visited upon these occupiers. Some have been pepper-sprayed and shot with bean-bags. A former Marine has had his skull broken. An 84-year-old lady was maced. And these people were in fact engaged in expressive activity in a reasonable manner, and clearly the First Amendment did nothing to stop city governments from doling out this abuse.
Bottom line is, be suspicious when the government gets to make and interpret its own rules about what is "free" speech, and what is "public" property. Clearly, there is no "freedom of speech" and clearly, you have no ownership rights to "public property" if you can get beanbagged in the face and suffer a broken skull from merely standing around at a protest.
Dreamonasif, you raise a bunch of great points. I'll try to address them one at a time.
ReplyDeleteThe distinction between "private" and "public" property an interesting one when it comes to free speech rights. One facet of free speech law that I didn't delve into in my article is the idea of "public forums". The term "public forum" is kind of a misnomer, because not all public space is considered a "public forum", and not all public forums are actually on public space.
If land is considered a public forum, then public speech must be allowed. This obviously isn't true of all public land, because there are some publicly owned properties where the state may prohibit speech (as long as the prohibition is content-neutral and doesn't discriminate against a particular viewpoint). For example, you and I may not walk onto the floor of the Senate and start expressing ourselves.
Public forums are traditionally found in places like publicly owned parks, sidewalks, plazas, etc. Public forums can also be found in privately owned property IF that property is held open to the public for traditional public uses (i.e. shopping malls, parking lots of grocery stores, etc.). This is the case with Zuccotti Park in Manhattan. Zuccotti Park is privately owned land, but it is held open to the public for public use. As such, it is treated as a public forum where all speech must be allowed. This is obviously not the case with your own backyard, since your backyard is not open to the public for public use.
Even when a piece of property is publicly owned and held open as a public forum, the state may still impose reasonable rules for the safety of individuals who use that land, as long as their rules don't prohibit speech or discriminate against a particular viewpoint. They may prohibit bonfires in the park, for instance. They may also prohibit sleeping in public spaces. I have a problem with rules against urban camping because those laws have essentially been used to criminalize homelessness (an unrelated issue, but one that I care deeply about).
Thanks for reading.