Friday, November 23, 2012

From the Declaration of Independence

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

This is why the First Amendment protects the right to complain.

Thursday, November 22, 2012

Narrow tailored, from WH Vigil and Perry

"Where a regulation restricts time, place or manner of speech, feasibility of regulation is not enough; regulation must also satisfy First Amendment requirement that it be narrowly tailored."
White House Vigil 746 F.2d 1518

No. 81-896.
Citation: "The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Grayned v. City of Rockford, supra, 408 U.S., at 115, 92 S.Ct., at 2302;

Monday, October 8, 2012

Here's the deal with the 1st Amendment

The 1st Amendment has alot of stuff jammed in. Why? 1a) The Constitution said about religion only that it would not be a test for office. But what if a lot of Methodists got in power and wanted to enforce their beliefs as laws? Ok we need to say that can't do that. But could we still burn heretics? Nope. No??? Where you gonna draw the line? See 1b.
1b) But with the revolution just over, they held that people should be able to say what they think. No burning anybody for what they say. And not just say, but write, using symbols like the alphabet. Or other symbols, like an armband. Or burning the flag, a modern blasphemy. And then what? See 1c.
1c) So once you have people talking, and if they decide on something, then they have a right to complain to the government, and the government has some minimal obligation to listen, or at least not shoot them, or lock them up.
Out of a feeling of propriety, and in recognition of the inability to formalize revolution,
they decided to put the next clause in the 2nd amendment.

Tuesday, April 24, 2012


vs the government hears only its own voice
C. Wright Mills, The Marxists, Ch 1, p26 Thus (Marx) condemns a censored press in terms that parallel the condemnation by John Stuart Mill: it leads to hypocracy, the greatest of vices ... the government hears only its own voice ... surrenders to the illusion that it hears the voice of the people .. the people on its side falls either into political superstition or else into indifference, and so turns completely away from the life of the state.
Q: Is engagement by the people important in a democracy?

Monday, January 30, 2012

And here is the worst part

Stifling dissent cannot be fixed by Constitutional amendment.

Signs and placards

The 36 CFR 7.96 discussion in Federal Register / Vol. 50. No. 161 / Tuesday, August 20, 1985 /33571 shows that the rules regarding signs are for "signs and placards" that have the capacity to be unattended, not the signs that demonstrators normally hand-carry. This is a substantial change in my understanding of the regulation, but makes sense in the historical context, linked to above, and in the wording of the regulation itself: 1) signs and placards, and 2) the sizes contemplated, which are large.
"The National Park Service is not proposing to prohibit demonstrations in Lafayette Park. Nor is it proposing to place any limitation on signs that are hand-carried. The Park Service is merely proposing to place reasonable, content-neutral limitations on signs placed down in Lafayette Park so that visitors might be able to enjoy the history and beauty of the Park while demonstrators continue to have ample avenues of communication. In addition, the proposed rule would apply only to Lafayette Park and not to the many other park areas in close proximity, for example, the Ellipse on the south side of the White House."

Saturday, January 28, 2012

Charles Evans Huges in Carolene Products 1938

Footnote 4:
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.

This may be asserted with more force against regulations emanating from the Executive Branch.

Thursday, January 26, 2012

US v. Nomad

Whether the regulation meets the "narrowly tailored" requirement is of course a question of law, to be reviewed by an appeIlate court de novo. See, e.g., White House Vigil v. CLark, 746 F.2d at 1529. This court has characterized "the test of'narrow tailoring' ... as a balancing test, inquiring whether the restriction 'burdens more speech than is necessary to further the government's legitimate interests.' " Henderson v. Lujan, No. 91-5258, slip opinion ("slip op.") at 9 (D.C. Cir. May 22, 1992) (quoting Ward, 491 U.S. at 799).

Overbroad: closed to all signs of protest

The Park Service creates time place and manner restrictions to this traditional public forum, marked in red.
Under the First Amendment, the government may not close traditional public forums,
The Supreme Court has developed a four-part analysis to evaluate the constitutionality of time place and manner restrictions. Restrictions must be
a. content-neutral and
b. be narrowly drawn and
c. serve a significant government interest and
d. leave open alternative channels of communication.
A restriction must serve an important government interest, and burden speech no more than is necessary to serve that interest. Restrictions that are carefully aimed at controlling the harmful consequences of speech and assembly, such as litter, unrest, and disorder, will normally satisfy these guidelines.
Is the compelling state interest served by making people mill through the center zone?
Can a passer-by take better pictures if the signs are in motion?
The regulation is not "rationally" related to the state's compelling interest - it does not achieve the objective.
Where is this interest located, in the spectrum of compelling state interests that the Parks Department has?
Isn't it over broad to criminalize the presence of one protestor with one sign in the center portion?
Would one sign would shatter the bucolic illusion so carefully tended.

Exclusive use or compatible use

What should be done if two groups want access to a sidewalk, and the two uses are incompatible?

GRAYNED v. CITY OF ROCKFORD No. 70-5106 focused on time place and manner restrictions, and created a "compatible use" test. This test states that the "crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." If the manner of the protected expression is incompatible with the normal activity at the time and place, the manner of that activity may be regulated.

In the case of demonstrations on the White House sidewalk, if one is claiming to protect normal activity, one would need to hold that a permitted demonstration is not normal activity, and in addition is incompatible with the normal activity for that time and place in a basic way.

The National Parks Service has created a permit system to manage access to Lafayette Park and the White House sidewalk, and to allocate the use of those places for a time. When demonstrators have a permit, their rights are still curtailed in the Center Zone, even though demonstrators have traditionally shown an interest in having full rights in that area, even to risking arrest.

The effect is that tourists, who have a lesser claim to sidewalk airspace (that is, they do not have a Constitutional claim to it, or a statutory one), and may not be present to enjoy it, are nonetheless given exclusive rights to it. Why is it that one demonstrator, who may be a tourist, or passerby, needs to yield to the passing whim of some other tourist or passerby, who does not demonstrate?

We claim that this bias against demonstrators is content-based, and triggers strict scrutiny.

The fact that the Parks Service prohibits all signs does not thereby make the regulation "content neutral". Virtually all the demonstrations that take place in front of the White House are critical of some government policy. Only the occasional event, like the killing of Osama Ben Laden, brings on an approving demonstration. That demonstration was allowed to proceed unchallenged.

Equal protection of the laws means much more than equal enforcement; but the lack of equal enforcement shows a bias. When the line drawn by government, regardless of what substantive benefit or opportunity is being distributed or what burden is being imposed, functions to subordinate some groups to others and deny to some the full dignity and equal respect that all are due from government, this is a failure to "treat all equally".

1983 Perry, regarding sidewalks

The public forum doctrine was refined over the years, culminating in Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983), where the Court established a three-tier categorization of public forums. The first category articulated in Perry was the traditional public forum. Traditional public forums include the streets, sidewalks, and parks discussed in Hague as being held in trust for the public. In a traditional public forum, the state may not restrict speech based on content unless it can show that its regulation is necessary to serve a compelling state interest and is narrowly tailored to achieve that interest.

Quote: An absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest. [1]

Quote: In U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114, 133, 101 S.Ct. 2676, 2687, 69 L.Ed.2d 517 (1981), we stated that "Congress . . . may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums. . . ." [ibid]

We say: Nor may regulators.

Streets and parks have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens." Hague v. CIO, 307 U.S. at 515.

We note that the fourteenth amendment does not protect privileges and immunities from theft by Congress, or by regulators in the Executive branch, and we note that the clear meaning of the fourteenth amendment has long been ignored by the Supreme Court, yet we claim that neither Congress nor the Executive may infringe on this privilege to protest in the Center Zone, absent substantive due process.

Sunday, January 22, 2012

The Presidential Seal Exception

Motion for Summary Judgment

from No. 85-5174: 1984 USA v. Mary Grace

Appellant Mary Grace argued “that the ‘center zone’ regulation is invalid as applied in this case. Grace notes, in particular, that soon after her conviction a reviewing stand for the Presidential Inauguration was erected on the sidewalk, which obstructed the view of the White House. She further observes that attached to the reviewing stand was a replica of the Presidential Seal, a sign in the same sense as the sign she carried when she was arrested.”

The justices held

08. ... a reviewing stand (which concededly obstructs the view of the White House) is permitted .
09. The attachment of the Seal to the reviewing stand presents a more difficult problem. … At oral argument, counsel for the government conceded that the Seal may be considered a "sign" within the meaning of the regulations. ...
10. ... The purpose of the prohibition on stationary signs in the "center zone" of the White House sidewalk is to prevent obstruction of the public view of the White House. In this case, however, to forbid the Inaugural Committee to place the Seal on the reviewing stand would not achieve that purpose. The reviewing stand was already present on the White House sidewalk.

The principle seems to be that if a sign obstructs an object other than the White House, and that object is permitted to be on the sidewalk, then the sign obstructs the other object and not the White House. In this case, the Presidential Seal does not constitute a violation of the regulations.

The demonstrators are allowed to be on the sidewalk. The signs, such as they were, obstructed a view of the demonstrators, not a view of the White House. According to the Presidential Seal exception, this does not constitute a violation of the regulations.