Thursday, January 26, 2012

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".

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