The second amendment is protected more vigorously than the first amendment.
Justice Breyer writes, in his book Making Our democracy Work, pg 167:
... put in terms of constitutionality, the proportionality question is the following: Does the handgun restriction disproportionately interfere with the values that underlie the Second Amendmment? This question encompasses several subsidiary questions: To what extent does the restriction interfere with the protected interest? To what extent does it further a compelling interest? Are there superior, less restrictive ways to accomplish the statue's important competing interest? The answers to the subsidiary questions help answer the ultimate question: Does the statue disproportionately restrict the value or interest that the Constitution protects? The Court has frequently asked these kinds of questions, sometimes using different language, where similar constitutional conflicts - say between free speech and privacy - are present.
Sunday, August 18, 2013
Friday, August 2, 2013
White House Vigil for the ERA
84-5271 746 F.2d 1518 United States Court of Appeals, District of Columbia Circuit.
Here is the sentence that justifies the "Center Portion" regulation 36 CFR 7.96 (g)(5)(vii):
"The government's interest in preserving a relatively unobstructed view of the White House
for tourists and passersby constitutes a legitimate aesthetic goal
which is not outweighed by the insubstantial infringement
on the demonstrators' ability to engage in expressive activities."
Stare Decisis can be invoked to uphold a decision one would have decided differently.
It should not be invoked when one believes that the original decision is unsound.
1. Stare Decisis does not amend the Constitution.
2. A constitutional issue is at stake.
3. The public has not relied on the decision. The public has ignored it.
4. The White House Vigil (WHV) changed the previous state. Overturning WHV restores it.
While it is true that the demonstrations will continue into the foreseeable future, so that the court may overrule WHV at its leisure, in the meantime the spectacle of peaceful demonstrations being cleared from in front of the White House will continue to damage the reputation of the US.
The 7.96 (g)(5)(vii) regulation is a time place manner exercise of police power.
Police power is used to protect health, safety, morals, and good order.
Here are some reasons that the (g)(5)(vii) "Center Portion" regulation was invalid, ab initio:
01. (g)(5)(vii) is not related to the interest; it does not preserve the "unobstructed view"
For what spot does (g)(5)(vii) serve to preserve the view substantially unobstructed?
Not for most of Lafayette Park. Demonstrators can stand there with signs of any size, anywhere.
Most photos from Lafayette Park show a White House already obscured by trees and monuments.
Vans are larger than signs. Traffic was not stopped in order to preserve "an unobstructed view".
Now that traffic has been stopped on Pennsylvania Avenue, demonstrations have moved into the street. This frustrates any possible beneficial impact of (g)(5)(vii) upon Lafayette Park.
Do signs obstruct substantially more of the White House than the demonstrators themselves do?
If there are 90 demonstrators, is anything accomplished by having the middle 30 walk in circles?
Was the idea to protect the view of the White House for tourists who are on the sidewalk?
02. The "government interest" is not the "public interest".
The comments published in the Federal Register are about the blight in Lafayette Park.
See Federal Register / Vol. 50. No. 161 / Tuesday, August 20, 1985 /33571 at paragraph 3 here.
Some of the fifteen comments mentioned the unattended signs in the Park.
Here is a representative sample from the Federal Register
Further, conversations with United States Park Police officers assigned to Lafayette Park during tourist seasons reveal that they generally receive ... as many as four or five oral comments each day about the visual blight in Lafayette Park. Complaints noted by the officers include the fact that large signs interfere with the view of the White House, prevent picture taking and, together with the ever-present structures, generally ruin the aesthetic quality of Lafayette Park.
The White House sidewalk is not mentioned in the Federal Register.
03. Some demonstrators are tourists. Should one try to draw a line?
The definition of a demonstration is an assembly that attracts passersby. (g)(1)(i)
What if the passersby want to join the demonstration? If a tourist in the "Center Portion" has a sign "Hi mom", and wants to join a demonstration, what does he do with his sign?
He cannot hold the sign; he cannot put the sign down; he cannot leave it unattended.
If the tourist looks at the White House as he holds the sign, is he ok?
Are out-of-towners exempt, since (g)(5)(vii) is intended to protect their rights to the view.
The regulation is a prior restraint: a crime is recognized before anyone's view has been impaired.
04. The infringement is not insubstantial.
Many carefully planned events have been broken up to satisfy the speculated desires of non-existent passersby; events where hundreds of people have participated, and thousands of dollars have been paid-out, and many people have come a long way, staying in hotels.
The regulation has needlessly created a high-crime area.
It is hard to have people milling about, and also have a speakers program.
The "no signs" rule means that most pictures of the event will not contain signs.
Nor is "insubstantial" the standard where the regulation does not serve the interest.
There are less restrictive alternatives.
05. 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, and this regulation places most of its burden on that group. Only the occasional event, like the killing of Osama Ben Laden, brings on an approving demonstration.
And that demonstration was allowed to proceed unchallenged.
You don't see Bechtel and Blackwater demonstrating in front of the White House.
Give the public better access, and you will have an unobstructed view of the White House.
06. The Grayned Time Place and Manner rule is incorrectly applied
The Grayned compatibile use test says the "crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."
Demonstrations are normal activity and so they cannot be incompatible with normal activity.
On what basis does (g)(5)(vii) grant exclusive use of the airspace to tourists?
If casual use by passersby is incompatible with large demonstrations, the permit system provides a reasonable method of sharing.
No evidence has been submitted that small demonstrations conflict with tourism.
07. A substantive violation of the clear text of the First Amendment
Remember that these amendments were added to the Constitution as assurances to people who had revolted against an unresponsive government. Assurances were given that the new government could be trusted with limited powers; given to revolutionaries who had told the world in the Declaration: "Our repeated Petitions have been answered only by repeated injury."
A very modest interpretation of the First Amendment would hold that the people may sometimes assemble to petition the government for the redress of grievances at the home of the Executive Branch in a peaceful manner as they choose, without being arrested.
The (g) regulations take words directly from the first amendment, and clearly and audaciously aim at limiting protected activity, rather than aiming at achieving a claimed interest.
Why is "obstruction of the tourist's view" not the alleged offense, based on the commerce clause?
Is the interest of a passerby a passing interest, rather than a compelling interest?
Standing still also has a meaning, which is frustrated by the requirement to move along.
Demonstrations are more important to the country than a reviewing stand, or some trees, or monuments to dead fighters, or traffic on Pennsylvania avenue, yet those were thought to be more important than an "unobstructed view" of the White House.
The Constitution protects having demonstrations in front of the White House.
The Constitution does not protect having a White House, or a having view of a White House.
A "legitimate aesthetic goal" is not the standard. Nor is deference to regulators.
08. All men are equal
If the National Parks Service wished to move the Wrought Iron Fence out to the curb in the "Center Portion" to "protect the view", it would be hard to find grounds to object, besides spite.
But once the fence is in place, all should have equal access to the remaining public space, first-come first-served, unless some other even-handed allocation method works better.
Jamison v. Texas: "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."
09. Bad optics. Not the only goal, or an important goal, of even the Executive Branch
It may be a legitimate esthetic goal of the gardeners, but is it a compelling goal of the 'government'? Has even the Executive Branch weighed the various interests of appearance of democracy vs. appearance of a photo spot, much less has the court? The Supreme Court is eager to preserve on its plaza certain appearances which are, at least, related to its governmental function. How can the Executive Branch dare to even make the claim that its predominant interest is in the superficial? And if they do make that claim, should the Judiciary uphold it as true?
That aesthetics may be a basis for regulations does not make legal all such regulations.
Why is it that this view is the only one the government has asserted a right to protect?.
Isn't there a compelling interest that the White House have an unobstructed view of the signs?
10. Most demonstrations do not substantially obstruct the view of the White House.
The "Center Portion" regulation prohibits a single demonstrator from standing while holding a single sign, of any size. This does not meet the requirement of Grayned, cited in Perry, to be "narrowly tailored to achieve a significant interest" in that (Nomad) "it burdens more speech than is necessary".
In Summary
The original decision erred in the following ways.
01. The asserted interest hides a political interest, which it accomplishes.
02. The regulation does not accomplish the asserted interest
03. The asserted interest could be accomplished without restricting assembly
04. The interest asserted is not the public's interest.
05. The purpose of the First Amendment is to protect activity from the public's interest
06. Demonstrators have as much right to the space as tourists
07. The infringement is not insubstantial
08. The court did not apply the proper level of scrutiny
09. The activity is normal to the area, so Grayned does not apply
10. The gardener's interest is not compelling
Here is the sentence that justifies the "Center Portion" regulation 36 CFR 7.96 (g)(5)(vii):
"The government's interest in preserving a relatively unobstructed view of the White House
for tourists and passersby constitutes a legitimate aesthetic goal
which is not outweighed by the insubstantial infringement
on the demonstrators' ability to engage in expressive activities."
Stare Decisis can be invoked to uphold a decision one would have decided differently.
It should not be invoked when one believes that the original decision is unsound.
1. Stare Decisis does not amend the Constitution.
2. A constitutional issue is at stake.
3. The public has not relied on the decision. The public has ignored it.
4. The White House Vigil (WHV) changed the previous state. Overturning WHV restores it.
While it is true that the demonstrations will continue into the foreseeable future, so that the court may overrule WHV at its leisure, in the meantime the spectacle of peaceful demonstrations being cleared from in front of the White House will continue to damage the reputation of the US.
The 7.96 (g)(5)(vii) regulation is a time place manner exercise of police power.
Police power is used to protect health, safety, morals, and good order.
Here are some reasons that the (g)(5)(vii) "Center Portion" regulation was invalid, ab initio:
01. (g)(5)(vii) is not related to the interest; it does not preserve the "unobstructed view"
For what spot does (g)(5)(vii) serve to preserve the view substantially unobstructed?
Not for most of Lafayette Park. Demonstrators can stand there with signs of any size, anywhere.
Most photos from Lafayette Park show a White House already obscured by trees and monuments.
Vans are larger than signs. Traffic was not stopped in order to preserve "an unobstructed view".
Now that traffic has been stopped on Pennsylvania Avenue, demonstrations have moved into the street. This frustrates any possible beneficial impact of (g)(5)(vii) upon Lafayette Park.
Do signs obstruct substantially more of the White House than the demonstrators themselves do?
If there are 90 demonstrators, is anything accomplished by having the middle 30 walk in circles?
Was the idea to protect the view of the White House for tourists who are on the sidewalk?
02. The "government interest" is not the "public interest".
The comments published in the Federal Register are about the blight in Lafayette Park.
See Federal Register / Vol. 50. No. 161 / Tuesday, August 20, 1985 /33571 at paragraph 3 here.
Some of the fifteen comments mentioned the unattended signs in the Park.
Here is a representative sample from the Federal Register
Further, conversations with United States Park Police officers assigned to Lafayette Park during tourist seasons reveal that they generally receive ... as many as four or five oral comments each day about the visual blight in Lafayette Park. Complaints noted by the officers include the fact that large signs interfere with the view of the White House, prevent picture taking and, together with the ever-present structures, generally ruin the aesthetic quality of Lafayette Park.
The White House sidewalk is not mentioned in the Federal Register.
03. Some demonstrators are tourists. Should one try to draw a line?
The definition of a demonstration is an assembly that attracts passersby. (g)(1)(i)
What if the passersby want to join the demonstration? If a tourist in the "Center Portion" has a sign "Hi mom", and wants to join a demonstration, what does he do with his sign?
He cannot hold the sign; he cannot put the sign down; he cannot leave it unattended.
If the tourist looks at the White House as he holds the sign, is he ok?
Are out-of-towners exempt, since (g)(5)(vii) is intended to protect their rights to the view.
The regulation is a prior restraint: a crime is recognized before anyone's view has been impaired.
04. The infringement is not insubstantial.
Many carefully planned events have been broken up to satisfy the speculated desires of non-existent passersby; events where hundreds of people have participated, and thousands of dollars have been paid-out, and many people have come a long way, staying in hotels.
The regulation has needlessly created a high-crime area.
It is hard to have people milling about, and also have a speakers program.
The "no signs" rule means that most pictures of the event will not contain signs.
Nor is "insubstantial" the standard where the regulation does not serve the interest.
There are less restrictive alternatives.
05. 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, and this regulation places most of its burden on that group. Only the occasional event, like the killing of Osama Ben Laden, brings on an approving demonstration.
And that demonstration was allowed to proceed unchallenged.
You don't see Bechtel and Blackwater demonstrating in front of the White House.
Give the public better access, and you will have an unobstructed view of the White House.
06. The Grayned Time Place and Manner rule is incorrectly applied
The Grayned compatibile use test says the "crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time."
Demonstrations are normal activity and so they cannot be incompatible with normal activity.
On what basis does (g)(5)(vii) grant exclusive use of the airspace to tourists?
If casual use by passersby is incompatible with large demonstrations, the permit system provides a reasonable method of sharing.
No evidence has been submitted that small demonstrations conflict with tourism.
07. A substantive violation of the clear text of the First Amendment
Remember that these amendments were added to the Constitution as assurances to people who had revolted against an unresponsive government. Assurances were given that the new government could be trusted with limited powers; given to revolutionaries who had told the world in the Declaration: "Our repeated Petitions have been answered only by repeated injury."
A very modest interpretation of the First Amendment would hold that the people may sometimes assemble to petition the government for the redress of grievances at the home of the Executive Branch in a peaceful manner as they choose, without being arrested.
The (g) regulations take words directly from the first amendment, and clearly and audaciously aim at limiting protected activity, rather than aiming at achieving a claimed interest.
Why is "obstruction of the tourist's view" not the alleged offense, based on the commerce clause?
Is the interest of a passerby a passing interest, rather than a compelling interest?
Standing still also has a meaning, which is frustrated by the requirement to move along.
Demonstrations are more important to the country than a reviewing stand, or some trees, or monuments to dead fighters, or traffic on Pennsylvania avenue, yet those were thought to be more important than an "unobstructed view" of the White House.
The Constitution protects having demonstrations in front of the White House.
The Constitution does not protect having a White House, or a having view of a White House.
A "legitimate aesthetic goal" is not the standard. Nor is deference to regulators.
08. All men are equal
If the National Parks Service wished to move the Wrought Iron Fence out to the curb in the "Center Portion" to "protect the view", it would be hard to find grounds to object, besides spite.
But once the fence is in place, all should have equal access to the remaining public space, first-come first-served, unless some other even-handed allocation method works better.
Jamison v. Texas: "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."
09. Bad optics. Not the only goal, or an important goal, of even the Executive Branch
It may be a legitimate esthetic goal of the gardeners, but is it a compelling goal of the 'government'? Has even the Executive Branch weighed the various interests of appearance of democracy vs. appearance of a photo spot, much less has the court? The Supreme Court is eager to preserve on its plaza certain appearances which are, at least, related to its governmental function. How can the Executive Branch dare to even make the claim that its predominant interest is in the superficial? And if they do make that claim, should the Judiciary uphold it as true?
That aesthetics may be a basis for regulations does not make legal all such regulations.
Why is it that this view is the only one the government has asserted a right to protect?.
Isn't there a compelling interest that the White House have an unobstructed view of the signs?
10. Most demonstrations do not substantially obstruct the view of the White House.
The "Center Portion" regulation prohibits a single demonstrator from standing while holding a single sign, of any size. This does not meet the requirement of Grayned, cited in Perry, to be "narrowly tailored to achieve a significant interest" in that (Nomad) "it burdens more speech than is necessary".
In Summary
The original decision erred in the following ways.
01. The asserted interest hides a political interest, which it accomplishes.
02. The regulation does not accomplish the asserted interest
03. The asserted interest could be accomplished without restricting assembly
04. The interest asserted is not the public's interest.
05. The purpose of the First Amendment is to protect activity from the public's interest
06. Demonstrators have as much right to the space as tourists
07. The infringement is not insubstantial
08. The court did not apply the proper level of scrutiny
09. The activity is normal to the area, so Grayned does not apply
10. The gardener's interest is not compelling
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