Protect face to face protest
Every four years, we witness the spectacle of the presidential nominating conventions. And every four years, host cities, party leaders and police officials devise ever more creative ways of distancing protesters from the politicians, delegates and journalists attending these stage-managed affairs.
The goal is to trivialize and isolate dissenting speech without actually banning protest. One result is something of a Potemkin village: Government proclaims its full commitment to respecting the First Amendment without actually permitting any observable dissent to take place near the convention.
Tampa, Fla., which will host the Republicans from August 27 to 30, and Charlotte, N.C., which will host the Democrats from September 3 to
7, are already following the trend. Charlotte has adopted an ordinance that expands the power of the local police to detain, search and arrest persons in its downtown core. (The Charlotte ordinance also bans camping on city-owned property, a clear response to the Occupy movement.) Tampa is also considering new municipal laws to limit, and in some instances flatly prohibit, downtown protest activity.
Citizens generally have a right to use public streets, sidewalks and parks for expressive activity—unless the government has a substantial reason for requiring expressive activity to take place somewhere else or at another time. Because the rights of speech, assembly and association do not include a right to communicate a particular message to a particular audience, the government’s willingness to let wouldbe protesters speak somewhere else, some other time, has usually been seen by courts as satisfying the First Amendment.
No reasonable person could argue that local officials or federal courts should ignore the genuine imperatives of security. In the post-9/11 world, and only a year after a gunman killed six people and critically wounded Rep. Gabrielle Giffords of Arizona during an outdoor public meeting in Tucson, it might seem naive to suggest that ordinary members of the public should have a right to communicate directly with elected government officials. Yet if democracy is to function properly, the ability of ordinary citizens to petition their government—directly and in person, if they choose—is essential.
Although virtually ignored today, a right to petition is part of the First Amendment, and the Constitution does not leave it to the government to decide who should have access to it.
The historical model of petitioning, going back to medieval England, literally involved laying a petition at the foot of the throne—while the king was sitting on it. The presentation of petitions has deep roots in American political culture. Quaker abolitionists used mass petitioning campaigns to advocate an end to the slave trade in the 1790s and the American Anti-slavery Society renewed such efforts with similar campaigns in the 1830s and ’40s. Female suffragists embraced petitioning—as did Native Americans and veterans in later decades.
The 1965 march from Selma to Montgomery, organized by the Southern Christian Leadership Conference, included a petition seeking protection of political and civil rights for Alabama’s black citizens. What would have happened if Alabama, invoking “security concerns,” had banished the Selma march and rally to a fairgrounds miles away from downtown Montgomery? The answer should be obvious.
The images of the conclusion of the march, including the Rev. Dr. Martin Luther King Jr.’s renowned “How Long?” address, provoked a national debate that helped ensure passage of the Voting Rights Act. This demonstrates the potential power of petitioning speech. The juxtaposition of petitioners confronting government and its officers—through the media—helps to facilitate a dialogue that engages the entire political community.
In the post-9/11 era, security has too often been an empty pretext for placing dissent out of eyesight and earshot. The manual for advance teams used during George W. Bush’s presidency designated protesters as a potential “security threat” if they were within the sight or hearing of the president—or the journalists covering his event. The manual instructed that demonstrators were to be relocated to a designated protest area not visible to journalists. (“If it is determined that the media will not see or hear them and that they pose no potential disruption to the event, they can be ignored,” the manual stated.)
Surely whatever bona fide security risk exists when people stand near a presidential motorcade route or outside a place where the president will speak is not a function of what their message is. (To be clear, policies seeking to marginalize dissent do not have a partisan cast. Under the Obama administration, would-be protesters in Manhattan and Austin, Texas, have been prevented— on pain of arrest—from demonstrating near presidential events.)
Unfortunately, the Supreme Court has not accorded the Petition Clause much legal significance. When litigants have pressed Petition Clause claims, the justices have noted that all First Amendment rights are “cut from the same cloth” and thus “are inseparable.” However, in Borough of duryea v. guar-nieri, a Petition Clause case decided last year, Justice Anthony M. Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation.”
This suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition. Officials in Charlotte and Tampa should not reflexively equate dissent with criminality (or domestic terrorism), nor should they have to be sued to do the right thing.
By adopting more narrowly tailored regulations, law enforcement officials could better reconcile security concerns with the right to petition. In exchange for giving protesters proximity to politicians, for example, city officials might require airport-style screening of would-be protesters, or limits on the total number of demonstrators permitted within a secured zone. They should facilitate, rather than inhibit, media coverage of protests.
Although the Petition Clause does not guarantee unconditional access to the government and its officers, it should secure a right of reasonable access.
Ronald J. Krotoszynski Jr., a professor of law at the University of Alabama, is the author of Reclaiming the Petition Clause: Seditious Libel, ‘Offensive’ Protest, and the Right to Petition the Government for a Redress of Grievances.