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Penning Protesters:
Are Police-Imposed "Free Speech Zones" and Cages at Conventions Constitutional?

Tuesday, Aug. 03, 2004

Last week, the Democratic National Convention (DNC) ended. But the First Amendment issues that were raised there did not. Indeed, they are likely to continue on indefinitely -- recurring at the upcoming Republican National Convention (RNC), and similar public events raising intense security concerns.

Protesters at the DNC were confined to a fenced-in area - a wire enclosure topped by razor wire outside Boston's FleetCenter, where the Convention was held. They charged that their First Amendment rights were violated by this confinement.

Were they correct? Certainly, the involvement by police in enforcing the enclosure established the "state action" necessary to establish a First Amendment violation. (Because the First Amendment does not apply to private actors, only government action can trigger its protections, and lead to a constitutional challenge.)

But on the other hand, one could argue that the protesters still did get to exercise their free speech rights to some extent - and that, even if their rights were infringed upon, that infringement was necessitated by security concerns.

In this column, I will explain why the DNC protesters' confinement was a free speech violation under fundamental principles of First Amendment doctrine. I will also suggest that these same principles ought to govern the treatment of protesters at the RNC and similar events.

Time, Place, and Manner Restrictions, and the "Captive Audience" Concept

To begin, an important component of First Amendment doctrine is the rule that "time, place, and manner" restrictions are generally permissible. How does this principle apply to the DNC protesters? It suggests that police had some latitude to tell the protesters where and when they could protest - just as a City has the latitude when giving out parade permits, to decide whether or not to give those who are applying for permission the exact parade route they are seeking.

Another important First Amendment rule is that you don't have a right to a "captive audience". Thus, the protesters did not necessarily have a right to be seated in the Convention Center itself -- nor did they have a right to push their message constantly on conventioneers who did not want to hear it.

Occasionally, the Supreme Court has recognized a right to preach even to a captive audience - for instance, in Cohen v. California, the Court upheld a man's right to wear a jacket emblazoned with the "F" word in a courthouse, a classic situation where the audience is more or less captive. But generally, there is no such right.

For these reasons, one might think the protesters' confinement did not violate the First Amendment. But other First Amendment principles make clear that it did.

Measures That Effectively Defeat First Amendment Rights Are Unconstitutional

The protesters did not have a right to a captive audience, or a right to protest anywhere they wanted to. But they did have the right to speak and protest. And that implies that they had the right to at least have a good chance to be heard by their desired audience - the conventioneers. Yet they argued that this chance was denied them: They said that, given the combination of the penning and the placement of the protest pens, they could not easily be seen protesting by delegates and others on their way to the Convention.

If that is true, it raises a serious First Amendment problem. Certainly, if the DNC protesters had only been able to speak their piece in a submarine on the bottom of the ocean, their rights would have been violated. And the protestors have said that their Convention placement had more or less the same effect.

Readers may object to this analysis, by arguing that protesters' real audience is not the conventioneers, but the media and the audience that they broadcast to. They may also point out that the media can easily cover the protests, even in their enclosed location.

Still, not all protesters simply want as large an audience as possible. Some want to reach a particular audience - and to reach that audience in person. For example, consider a protester whose child has died in Iraq, and who feels Kerry should have strongly opposed the war there, and that Bush should not have initiated it. That protester may be traveling to both the DNC and the RNC -- hoping to be seen by Kerry and Bush in particular, or at least by the convention delegates who are going to cast their votes for each.

Penning Protesters: An Impediment to Democratic Dialogue and Persuasion

In addition, the fact that the protesters were penned also raises another serious First Amendment issue: The right to speak is also the right to participate in the dialogue that is a central part of our democracy. But pens cripple that possibility of dialogue.

Suppose a listener was interested in what a protester had to say - and wanted to speak to the protester further. Given the penning, it would be difficult to have a sustained conversation up close. Listeners should not be forced to join protesters in their pen in order to speak with them. Nor could a protester follow the listener into the Convention Hall, or even along the listener's path there, to continue the conversation.

As we all know, preaching to the converted is hardly the way to win new converts. The protesters were there to change minds - not just to make a ruckus. Because the penning inhibited their power to persuade, it also inhibited their First Amendment rights.

The Fourth Amendment Versus the First: With Searches, Fencing Is Unnecessary

But what about security concerns? Did these concerns justify situating protesters far from the conventioneers' route, and penning them in? I will argue that the answer is no.

The purported security issue, with respect to protesters, partly arises from the wrongful assumption that protesters are likely to be terrorists - or otherwise to be violent. This claim, however, is one of the most anti-First Amendment charges that a government official can make.

Like the statement that protest is unpatriotic, the statement that protesters are likely to be terrorists, or likely to be otherwise violent, is damaging to our status as a free society. This assumption also collapses upon examination: Why would someone trying to change the system through protest be more likely than others to resort to violence to destroy the system?

Of course, some protesters have resorted to violence, but so many more have made nonviolence -- even in the face of police violence - a tenet. The true domestic terrorists - the Tim McVeighs of the world - are far more likely to be found in the trucks rigged with bombs than in the pens set up for speech.

At the DNC, for instance, though it never materialized, there was an FBI report that circulated of a possible terrorist plan by a "fringe" protester to attack media vehicles. Moreover, if it had, you can bet that that terrorist-protester would not have been found in the protest pens, but outside them. You can also bet that the protest pens would not have prevented that terrorist-protester from acting.

And wouldn't someone who wanted to commit violence tend to proceed incognito, or pretend to be a conventioneer, rather than identifying himself as a protester and proceeding into the "protest pen? The person holding the placard is probably not the one we have to worry about.

The Fourth Amendment/First Amendment Tradeoff: Better Searches, More Speech

Finally, it's important to remember that we have other measures to ensure that protesters and others do not carry weapons or other instruments of violence - and we would be foolish to use them on protesters alone. (Such selectivity in enforcement would itself also raise First Amendment problems.)

In New York, recently, federal judge Robert Sweet held that generalized searches of protesters' bags - that is, searches absent a specific threat -- cannot be conducted at the upcoming Republican National Convention. The basis for Judge Sweet's ruling was the Fourth Amendment, which renders certain searches unconstitutional -- as Sherry Colb has explained in a recent column supporting this aspect of Judge Sweet's decision.

I believe Judge Sweet's ruling was in error on this point, for two reasons. First, I think the genuine security threat attending the Convention is grave enough to justify bag searches. Second, I think that interpreting the Fourth Amendment to reach this far is not only a mistake in itself, but one that will inevitably diminish First Amendment rights.

After all, which is a worse intrusion: Having one's bags examined for possible weaponry, or being placed in a cage where one's cries of protest will mostly fall on deaf (or no) ears?

The reality is that in today's climate, if protesters cannot be searched, they are going to be penned. In light of this reality, we need to consider how intrusive such searches really are. In my view, bag searches are only a modest intrusion on privacy - whereas the protester pens that will inevitably result if bags cannot be searched are a serious intrusion on liberty.

Also, in the unlikely event that a bag search leads to persecution based on political ideas as expressed in confiscated papers, a federal judge can at least partially remedy that wrong. But putting protesters far away from their potential audience effectively silences them -- and for that, there is no effective remedy.

If rights are to be infringed in the "war on terrorism," then First Amendment rights should be last on the list.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter.

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