Stare Decisis

Stare Decisis does not have the same effect as a Constitutional Amendment. While we can not ignore history, neither can we ignore the clear text of the Constitution. The text creates principled high points on which the rest of the law is hung. These high points are connected by strands of logic that create a kind of fabric ceiling. And very soon after our founders framed the Constitution, they built three walls against government disfavor: protecting religious belief, protecting free expression, and protecting the right to object.

Prior restraint of assembly

Judge Brandeis, in his dissenting concurrence in WHITNEY V. CALIFORNIA, says "The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or of assembling with others for that purpose, is given the dynamic quality of crime."

The word "mere" indicates a "prior restraint" analysis: the recognition of a crime before it happens. Prior restraint is the "ounce of prevention" argument advanced by counsel in Tinker v Des Moines, but not persuasively.

Organization for a Better Austin is a case where restraint on the distribution of handbills was struck down. Prior restraint is a recognition of a harm "too soon", before "it" has occurred, and where the occurrence of the harm is uncertain or can be minimized by other means, and where remedies are possible if harm should occur.

Alternative channels and what is normal

From Mary Grace, Judge Marshall, 461 U.S. 171 (103 S.Ct. 1702, 75 L.Ed.2d 736) concur in part.
When a citizen is "in a place where [he] has every right to be," Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 724, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J., joined by Warren, C.J., and Douglas, J.), he cannot be denied the opportunity to express his views simply because the government has not chosen to designate the area as a forum for public discussion. While the right to conduct expressive activities in such areas as streets, parks, and sidewalks is reinforced by their traditional use for purposes of assembly, Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939) (opinion of Roberts, J., joined by Black, J.), that right ultimately rests on the principle that "one who is rightfully on a street which the state has left open to the public carries with him there as elsewhere the constitutional right to express his views in an orderly fashion." Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 671, 87 L.Ed. 869 (1943) (emphasis added). Every citizen lawfully present in a public place has a right to engage in peaceable and orderly expression that is not incompatible with the primary activity of the place in question, whether that place is a school,1 a library,2 a private lunch counter,3 the grounds of a statehouse,4 the grounds of the United States Capitol,5 a bus terminal,6 an airport,7 or a welfare center.8 As we stated in Grayned v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 2303, 33 L.Ed.2d 222 (1972), "[t]he crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939).

One question this raises is "is it normal to protest outside the White House?"
White House Vigil implies that this is not normal.

Analysis of the June 26th arrest

take 2.1, with footnotes
== General References
Google Maps view of the White House Sidewalk and and of the Center Zone
== Annotations, with @timestamp
@00:30 36CFR7.96 as of 2010, formatted. Subsection (g.5.vii) is the Center Zone text
@01:45 09/11 didn't change everything: 36CFR7.96. Was it too quaint?
@03:00 See the June 26th video @01:00 for the announcement that the sidewalk was closed.
@04:30 People act surprised on the June 26 video. Something happening at the curb?
@05:30 Why should a judge not require somewhat reliable evidence?
@07:15 Or cordon off to collect evidence, or aid a victim...
@08:00 Photo after closure of sidewalk
@08:10 The Mary Grace exception
@11:00 Here is the deal with the First Amendment. Why all that in one amendment anyway?
@13:00 What is a traditional public forum?
@13:45 The White House sidewalk is a traditional public forum.
@18:40 Example of discriminatory enforcement, against protected speech.
@19:50 Build a viewing platform, rather than trample on the First Amendment.
@21:30 regulations aimed at self supporting signs.
@22:00 Regulating t-shirts: Fed Register, Volume 75. page 64149 and ff
@25:00 History of pointless enforcement
@25:45 Strict scrutiny

take 1

@08:50 Strict scrutiny of restrictions to the content of speech (press), and as to time place and manner for speech and assembly.
@13:00 Demonstrations provide valuable feedback.
@14:15 A deference to be given to police, like referees.
@14:45 But certain places are assumed to be ok, are, traditionally, public forums.
@20:00 First come, first served. If the demonstrator is facing the fountain, he's ok.
@21:00 Find a solution that satisfies both demonstrator and tourist, or try to.

White House, June 26th 2013