Meaningful Speech

Jason Borenstein PhD

Visiting Associate Professor

School of Public Policy, GeorgiaTech

<jason.borenstein@pubpolicy.gatech.edu>

Copyright © Jason Boronstein 2005
First published in the Web Journal of Current Legal Issues

“If the free speech clause of the First Amendment does not protect the right of citizens to “interject” their own convictions and beliefs into a public event on a public forum then it is difficult to understand why the Framers bothered including it all.”(1)

Summary

In a country that prides itself on the value of freedom of speech encoded with the First Amendment of the Constitution, it is strangely inconsistent how dogmatic and rigid the government can be in its efforts to censor unpopular and “obscene” views.  American citizens frequently pay homage to the notion that free speech is crucial to the health of the country’s democracy.  Outwardly, we profess to value the importance of free speech.  Yet “free speech zones” have emerged across the country, typically at political rallies and on college campuses, which have in effect curtailed the ability of protesters to voice dissenting opinions.  In this article, my aim is to examine whether recent restrictions on political speech, primarily the use of free speech zones, are justified.

Contents

Introduction

In a country that prides itself on the value of freedom of speech encoded with the First Amendment of the Constitution, it is strangely inconsistent how dogmatic and rigid the government can be in its efforts to censor unpopular and “obscene” views.  American citizens frequently pay homage to the notion that free speech is crucial to the health of the country’s democracy.  Outwardly, we profess to value the importance of free speech.  Yet in practice we can be rather quick in our efforts to restrict it.  A legacy of the terrorist attacks of September 11^th, for example, is that voicing dissent against U.S. policy here and abroad is frequently seen as an unpatriotic act.  Further, “free speech zones” have emerged across the country, typically at political rallies and on college campuses, which have in effect curtailed the ability of protesters to voice dissenting opinions.  In this article, my aim is to examine whether recent restrictions on political speech, primarily the use of free speech zones, are justified.

During peacetime, when the political opinions being expressed are consistent with what the majority thinks and are unobjectionable, we frequently pay tribute to the notion that free speech must be cherished and protected.  Yet in the effort to present a united front against terrorism, the pervasive feel in the country following after 9/11 was that President George Bush had a grace period where he was largely immune from criticism.(2) For a time, openly questioning the President’s policy decisions regarding national security was roughly equivalent to committing political suicide.(3) As one author suggests, “patriots were defined as never-critical supporters of the national administration.”(4) Senator Tom Daschle, for example, was sharply rebuked by members of Congress for questioning the Bush administration’s strategy for handling Iraq prior to the war.(5) Further, the manner in which political discourse has been framed concerning the euphemistically-named USA Patriot Act is that if you criticize the Act, then you are perhaps guilty of betraying the country’s values.  As one commentator points out, “the title of the law itself betrays a dislike of dissent by insinuating that criticism is unpatriotic.”(6) Thus, it has become increasingly difficult to be committed to the fight against terrorism and yet question the specific measures used to accomplish that goal without being branded as weak or “un-American”. 

Top | Contents

Intolerance for Dissent

The aura of intolerance for dissent is in part why Michael Moore’s film Fahrenheit 9/11 created quite a stir because of the uncharitable way in which it portrays the Bush presidency.(7)  Even though the policies enacted by the Bush administration in its response to terrorism have been criticized for undermining civil liberties,(8) citizens themselves seem to have little time or patience for dissenting opinions.  On occasion, Americans have threatened and committed violence against protesters based on the perception that the protesters were offering views intended to undermine the government.(9) Hence, the pressure to conform has caused self-censorship to become increasingly appealing.  Silence has become a better option for some protesters during a time that voicing dissent has been conflated with being an anarchist.

Many local governments across the country have taken extensive liberties in their efforts to control and restrict speech.  For example, protesters in Boston and New York struggled to overcome barriers blocking their ability to demonstrate during the 2004 Democratic convention and the 2004 Republican convention respectively.(10) One petition to march in New York, for example, was rejected by the Department of Parks and Recreation in part because demonstrators might destroy the grass in Central Park.(11) This issue was brought to court and the district court judge presiding over the case recommended that protesters demonstrate outside the Manhattan area.(12)  Further, according to reports, the FBI had been interviewing potential protesters even before their demonstrations took place.(13) Thus, the mere suspicion that an individual might express a dissenting opinion can draw the attention of law enforcement agencies.  Moreover, New York City officials have been held to be in contempt of court for detaining convention protesters without sufficient cause. Allegedly, dozens of individuals were arrested even though they did not participate in demonstrations.  According to The Washington Post, protesters claim that they were not given access to lawyers even though the police held them for almost two days.(14)  Some of the arrested protesters also claim that “if they signed a document admitting guilt and waiving the right to sue for false arrest,” that the police had offered to expedite their release.(15

Restrictions on public demonstrations were also enacted shortly before the G-8 summit took place on Sea Island in 2004.(16) The city of Brunswick, along with Glynn County, enacted ordinances that would restrict public assemblies unless organizers satisfied numerous stipulations, including submitting a deposit to cover the estimated cost for police protection.(17) Further, if a group of six or more members planned to demonstrate, organizers were required to obtain a permit at least 20 days prior to the event.(18)  Glynn County also sought to enact a provision that would require protesters to waive their right to sue police officers if injured while demonstrating, but the provision was eventually abandoned.(19) 

Local ordinances restricting speech, like the ones in Glynn County, have forced some protesters to sue for the right to demonstrate.  It is not uncommon that protesters have had to fight prolonged legal battles before barriers placed in the way of their ability to speak were removed.  For example, Martha Burk had to sue for the right to protest during the 2003 Masters tournament at the Augusta National Golf Club.  An Augusta ordinance required that protesters demonstrate at least a half of a mile away from the club’s entrance and that protesting groups must have a permit if they had five or more members.(20) The ACLU, arguing on behalf of Burk, suggested that the ordinance forced protesters to move so far away from the event that the event’s attendees would not even know that a demonstration was occurring.  Although the 11th Circuit eventually overturned the ordinance, this case highlights the ongoing battle that protesters have to fight in order to be entitled to meaningful speech rights.

Top | Contents

Free Speech Zones

Following after 9/11, national security concerns have frequently been used as a justification for restricting political speech.  One manifestation of the effort to maintain security during high-profile political events is the creation of so-called “free speech zones”.  In general, “free speech zones” are specifically designated areas where protesters are permitted to demonstrate.  For example, the Secret Service and local law enforcement agencies often establish free speech zones when President Bush travels across the country to make public appearances.  Further, speech zones were also created during the President’s visit to London in 2003.  During the President’s stay, protesters were restricted from demonstrating in several parts of the city, including areas near the Parliament building.(21)  Purportedly, these zones have been created during the President’s speeches for security reasons.  Yet critics justifiably complain that the creation of these zones denies protesters the ability to make effective demonstrations.(22)

According to the San Francisco Chronicle, while President Bush was visiting Pennsylvania on Labor Day 2002, a free speech zone was established “a third of a mile from the location of Bush’s speech.”(23) The report goes on to say that although protesters were sequestered together in a fenced-off area, Bush supporters were allowed to gather along the path of the President’s motorcade.  One protester, Bill Neel, attempted to express his First Amendment right by holding a sign criticizing President Bush outside of the designated “free speech zone”.(24) Neel, a former member of the U.S. army and a retired steelworker, had been forced into free speech zones at several other political events and had decided not to stay within the designated zone this time.  Even though Neel was protesting peacefully and did not resist police officers according to reports, he was arrested and detained for over two hours.(25) After examining the case, the presiding judge dropped the charges against Neel.(26)

Similar incidents involving restrictions on free speech have also occurred in Florida.  During a 2001 speech by President Bush, three protesters, including two grandmothers, were arrested for holding handwritten signs criticizing the President within a crowd of Bush supporters.(27) The charges against the three protesters were eventually dropped, and the protesters have since filed a federal lawsuit alleging that their civil rights had been violated.  Several protesters were also arrested for demonstrating outside the designated free speech zone during a 2002 rally for the President’s brother Florida Governor Jeb Bush.(28) The protesters were charged with trespassing because they refused to move into a free speech area.

During the President’s visit to Columbia, South Carolina in 2002, a protester, Brett Bursey, was approached by a police officer for holding a sign criticizing the war in Iraq and was told to move to a “free speech zone” established a half of a mile away from the speech.(29)  According to a report of the incident, Bursey claims that the police officer told him to relocate because of the content of the sign he was holding.(30)  Bursey was arrested for trespassing in a restricted area after refusing to move into the designated “free speech zone”.  Although local prosecutors declined to press charges against Bursey, U.S. attorney Strom Thurmond, Jr. decided to pursue the case and pressed federal charges several months later. 

Betty Hall, an 83 year-old former state representative from New Hampshire, was also arrested for protesting too close to an area where President Bush was speaking.(31)  Ms. Hall had already been relocated by the police twice and was taken into custody after she refused to move a third time.  At the time of her arrest, she was sitting on a chair-cane and was located approximately a half of a mile away from the President’s speech.

Top | Contents

Free Speech Zones and the Courts

In response to “free speech zone” incidents, the ACLU has filed numerous legal complaints, including one in the U.S. District Court in Philadelphia, alleging that the Secret Service has participated in “viewpoint discrimination” by permitting Bush supporters to be close to speeches and rallies while herding protesters into free speech zones much further away.(32)  Yet allegations that the government selectively censors political speech is not something that has only afflicted the Bush administration.  In 1996, the Christian Defense Coalition (CDC) sought permission to demonstrate during President Bill Clinton’s second Inaugural Parade in order to protest his policies on abortion.  Although the National Park Service (NPS) had already granted demonstration permits to other organizations, the NPS rejected the CDC’s application.  Moreover, the members of the CDC were threatened with arrest and fines if they participated in “illegal conduct” by picketing during the parade even though supporters of the President were permitted to attend the parade.

While presiding over the CDC’s case, the Circuit Court of Appeals for the District of Columbia astutely recognized that the First Amendment becomes inconsequential unless the right of citizens to protest is protected.(33) The Court reiterates a crucial value embraced with the Constitution that “a government entity may not exclude from a public forum persons who wish to engage in First Amendment protected activity solely because the government actor fears, dislikes, or disagrees with the opinions of those citizens.”(34) The Court criticized the inconsistency of a policy that protects the expression of favorable political opinions while categorically restricting the expression of dissenting opinions.

In essence, the aforementioned cases illustrate that the political views of the individuals attending public events involving the country’s president determine where they are permitted to stand and speak. The type of “viewpoint discrimination” occurring at these and other public events is not warranted.  In order to justify speech restrictions, the benefit of those restrictions must clearly outweigh the burden placed on citizens when their ability to speak is curtailed.  The government oversteps its discretionary power to censor political speech when protesters are discriminated against merely based on the content of their unpopular speech.  Although slippery slope arguments are notoriously malleable and overused, it seems warranted to invoke the “slippery slope” in this circumstance because the right to express political opinions at public events seems to be disappearing.  As the government continues to chip away at our individual freedoms in the hopes of preserving national security, having the meaningful opportunity to express political opinions is crucially important.  To maintain the health of a strong democracy, it is crucially important that dissenting voices are given a fair opportunity to be heard even if the policy decisions of country’s president are brought into question. 

We should be diligent in our efforts to avoid invoking the doctrine of “prior restraint” too frequently because doing so weakens the tenets of free speech by victimizing the majority of protesters who would demonstrate peacefully.  The proffered motive for creating free speech zones has been dubiously labeled as being for “security reasons”.  Yet, it is unclear why individuals or groups who pose an actual threat to the President would flagrantly display their dislike for him since they would be hoarded away from the area into a speech zone.  Those who are a real threat would only bring more attention to themselves by offering anti-government sentiments openly.  It is unwise to assume that dangerous individuals would naively identify themselves as targets for law enforcement officials to track.  Thus, the logic of moving peaceful protesters further away from the President than individuals who claim to be his supporters for security reasons seems flawed.  Although it is perfectly reasonable and necessary to ensure that the President is protected, it is not justifiable to silence dissent unless the measures used to maintain security are effective, outweighing the burden placed on citizens. 

In principle, the reasoning behind the “security” argument could be used as a justification for moving everyone attending a public speech away from the President since it is not always obvious which particular individuals pose an actual threat to the President.  Individuals allegedly supporting the President could still be dangerous to him.  Further, the argument can be made that the added disruption of enforcing a free speech zone may make the task of maintaining security more difficult for law enforcement agencies.  Protesters may harbor resentment for the police after they become aware that they are treated differently because of their political views.  Considering the hostility generated between police officers and protesters during the 1999 World Trade Organization meeting in Seattle(35) and the 2003 Free Trade of the Americans Summit in Miami,(36) it may not be a particularly wise idea to agitate protesters preemptively by placing barriers in the way of their ability to exercise their constitutional rights. 

Top | Contents

Free Speech Zones and Universities

Over the last few decades, the issue of “free speech zones” has also reached college campuses as schools across the country struggle to determine what the limits of free speech are.(37)  Schools, including West Virginia University, Florida State University, Iowa State University, New Mexico State, and the University of Mississippi, have at one time or another established designated areas on campus where students are allowed to conduct free speech activities.  The avowed intent of creating these areas is to permit students to retain the right to speak while preventing such demonstrations from interfering with the educational life of the campus.

There is a somewhat noble and understandable goal underlying the attempt by university administrators to control speech, which is to decrease incidents of sexual harassment and racial discrimination on campus. Yet the movement toward creating free speech zones is too far-reaching and restrictive.  The potential that some students will abuse their right to speak should not be used as a justification for enforcing free speech zones because the zones categorically infringe on the rights of all students to speak even though most of them have done nothing wrong.  Further, a speech zone might interfere with the ability of students to challenge their school’s speech policy by limiting where students can speak.  Moreover, free speech zones enacted by universities do not usually withstand legal challenge.(38) In 2002, West Virginia University, for example, revised its speech policy from permitting speech in two designated areas to allowing speech across the entire campus.(39) Southwest Missouri State University recently decided to remove its policy on free speech zones after receiving complaints from students.(40)

Demonstrations should not interfere with the educational life of the campus by blocking access to classrooms and other buildings, but protesters should be able to demonstrate in areas where they can be heard if an audience voluntarily listens.  Of course, if students incite a riot, violate the “clear and present danger” exception to free speech, or threaten particular individuals, then there are legitimate reasons to restrict speech because of the harm that may be caused.  Barring those situations, which have been discussed at length within court cases, the university’s policy should be consistent, meaning that if one student organization is allowed to use an area for a demonstration, the other student groups should be permitted as well.  In other words, the policy should be “content neutral” so that it is not tailored toward discriminating against or censoring particular groups on campus.

Top | Contents

Conclusion

Although an absolutist view on free speech is untenable, the right to express political speech has to be extensive in order to be meaningful.  Granted that there are good candidate cases where speech is restricted justifiably, such as if threats of physical harm are specifically directed at a particular individual.(41) Yet too often barriers, such as “free speech zones”, have hastily been constructed to curtail the ability of protesters to speak freely.  The price of free speech is that voices expressing dissenting views have to be tolerated even if they are unpopular and distasteful.  First Amendment rights are meaningful and substantive only if they are vigorously defended during difficult times when the message being presented is unpalatable.  In a society that claims to cherish the value of freedom, education, reason, and critical thinking will hopefully win out instead of relying on the scourge of selective censorship.