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Fbi Controlling the Right to Protest 2007

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Legal Digest
Time, Place, and Manner: Controlling the Right to Protest
By MARTIN J. KING, J.D.
http://www.fbi.gov/publications/leb/2007/leb07.htm
In towns it is impossible to prevent men from assembling, getting
excited together and forming sudden passionate resolves. Towns are
like great meeting houses with all the inhabitants as members. In them
the people wield immense influence over their magistrates and often
carry their desires into execution without intermediaries.
—Alexis de Tocqueville
hese words, published in 1835 by Alexis de Tocqueville in the book
American Democracy, were intended as an observation on the importance
of the right of assembly to a citizen's ability to directly in?uence
the political process.1 However, the ability to "carry their desires
into execution" has a potentially ominous connotation in a
post-September 11 environment where a concern for security and public
safety is paramount. If, for example, the desire to be carried into
execution is to "affect the conduct of a government by mass
destruction," then it quali?es as an act of terrorism that law
enforcement is charged with preventing.2 An event, activity, or
meeting having political, ideological, or social signi?cance might
hold an equal attraction to a peaceful protestor as it would to a
potential terrorist or anarchist. Thus, the dilemma, long faced by law
enforcement but now exacerbated by the omnipresent threat of
terrorism, is how to effectively exercise control over such events,
which often involve large gatherings of people, in the interest of
preserving public order and safety without trammeling the First
Amendment rights of protesters. This article examines how courts have
recently reconciled security-based restrictions with the right to
protest.

The Right of Public Protest
Freedom of speech and the right of the people peaceably to assemble
are speci?cally guaranteed by the First Amendment to the U.S.
Constitution.3 Protest activity falls squarely within the First
Amendment's guarantees of freedom of speech and assembly.4 The right
to protest is most highly protected when assembly for purposes of
expression takes place on property that, by law or tradition, has been
given the status of a public forum, such as public streets, sidewalks,
and parks, rather than on property that has been limited to some other
governmental use.5 Nevertheless, it is well settled that the First

Amendment does not guarantee unlimited access to government property
for expressive purposes. Because expressive conduct occurring in
public places, by its very nature, may con?ict with other pursuits of
the general population within that space, the need to balance
competing interests in this area has long been recognized.6 The U.S.
Supreme Court itself has noted that "courts have for years grappled
with the claims of the right to disseminate ideas in public places as
against claims of an effective power in government to keep the peace
and protect other interests of a civilized community."7
Accordingly, although protest activity in public places is protected
by the Constitution as free speech, it is afforded less protection
than other forms of expression that do not involve conduct.8
Individuals who communicate ideas by conduct, such as participating in
a protest march, have less protection than those who communicate ideas
by "pure speech," such as speaking or publishing. Indeed, the terms
speech plus and expressive conduct are used to describe public
demonstrations that involve the communication of political, economic,
or social viewpoints by means of picketing, marching, distributing
lea?ets, addressing publicly assembled audiences, soliciting
door-to-door, or other forms of protest.9 The expression of ideas in a
manner that neither threatens public safety nor undermines respect for
the rule of law is afforded comprehensive protection under the First
Amendment. When speech does not involve aggressive disruptive action
or group demonstrations, it is almost always protected from government
regulation.10 Conduct, however, is subject to reasonable regulation by
the government even though intertwined with expression and
association.11 Demonstration routes, for instance, sometimes must be
altered to account for the requirements of traf?c or pedestrian ?ow.12
People have a constitutional right to march in a protest but not with
noisy bull horns at 4 a.m. in a residential neighborhood.13 In
regulating expressive conduct, the government is not permitted to
completely close all avenues for public protest or to restrict access
to public forums based on considerations of the content of the message
or viewpoint of the speaker.14
Government restriction of expressive activity imposed in advance of
its occurrence raises the specter of a prohibited form of content or
viewpoint discrimination known as a "prior restraint" on speech.15
Concerns over prior restraints relate primarily to government
restrictions on speech that result in censorship.16 Although the U.S.
Supreme Court has indicated that "any system of prior restraints of
expression comes to this Court bearing a heavy presumption against its
constitutional validity," it has consistently refused to characterize
government restriction of protest activity as a prior restraint.17

Restrictions imposed on expressive conduct must not operate as a form
of censorship. Therefore, when imposing restrictions on protest
activity, the government is not permitted to discriminate based on the
content or viewpoint of the demonstrators and must allow for adequate
alternative means of expression. A complete ban on protest activity
that effectively silenced dissent in a public forum would be a
presumptively unconstitutional prior restraint on speech and,
accordingly, is rarely encountered in actual practice.18 Much more
commonly presented are government efforts to regulate protest activity
through a permitting or licensing process whereby of?cials are put on
notice of the planned activity and then seek to impose an alternative
date or time or a different location or route than that requested by
the organizers of the protest.19
Time, Place, and Manner Restrictions
(c) Mark C. Ide
Where government restrictions are not based on censorship of the
viewpoint of the protestors, courts employ the First Amendment
doctrine of time, place, and manner to balance the right to protest
against competing governmental interests served by the enforcement of
content-neutral restrictions.20 In differentiating between
content-based and content-neutral restrictions on the right to public
protest, the U.S. Supreme Court has held that "[t]he principal inquiry
in determining content neutrality, in speech cases generally and in
time place or manner cases in particular is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys."21 A fundamental principle behind content analysis
is that "government may not grant the use of a forum to people whose
views it ?nds acceptable, but deny use to those wishing to express
less favored or more controversial views."22 Even given that protest
activity is expressive conduct, courts take a categorical approach to
the question of conduct versus content regulation. In assessing
whether a government restriction is content neutral, courts look at
the literal language of the restriction, rather than delving into
questions of any hidden motive to suppress speech; stated another way,
"whether a statute is content neutral or content based is something
that can be determined on the face of it; if the statute describes
speech by content then it is content based."23
Time, place, and manner restrictions do not target speech based on
content, and, to stand up in court, they must be applied in a
content-neutral manner. The U.S. Supreme Court has developed a
four-part test to determine the constitutional validity of time,
place, and manner regulation of expressive conduct in a public forum.

1) The regulation must serve an important government interest (e.g.,
public safety).
2) The government interest served by the regulation must be unrelated
to the suppression of a particular message (i.e., content neutral).
3) The regulation must be narrowly tailored to serve the government's interest.
4) The regulation must leave open ample alternative means for
communicating the message.24
All four of these requirements must be satis?ed to survive a
constitutional challenge, and failure to satisfy even one will render
the restriction invalid. The third and fourth criteria are closely
aligned. Narrow tailoring means that the restriction imposed is not
substantially broader than necessary to achieve the government's
interest. However, "the regulation will not be invalid simply because
a court concluded that the government's interest could be adequately
served by some less speech-restrictive alternative."25 In other words,
a narrowly tailored restriction does not require the government to
impose the least intrusive restriction possible. The case of Hill v.
Colorado illustrates the straightforward approach taken by the U.S.
Supreme Court when applying this test to government-imposed
restrictions on protest activity.26 In Hill, antiabortion protestors
challenged the constitutionality of a Colorado statute that made it
unlawful for "any person to 'knowingly approach' within eight feet of
any person, without that person's consent, 'for the purpose of passing
a lea?et or handbill to, displaying a sign to, or engaging in oral
protest, education or counseling with such other person," within 100
feet of the entrance to any health care facility.27 In declaring the
statute a valid time, place, and manner restriction, the Court held:
The Colorado Statute passes that test for three independent reasons.
First, it is not a "regulation of speech." Rather, it is a regulation
of the places where some speech may occur. Second, it was not adopted
"because of disagreement with the message it conveys." This conclusion
is supported not just by the Colorado court's interpretation of
legislative history, but more importantly by the State Supreme Court's
unequivocal holding that the statute's "restrictions apply equally to
all demonstrators, regardless of viewpoint, and the statutory language
makes no reference to the content of the speech." Third, the state's
interest in protecting access and privacy, and providing police with
clear guidelines, are unrelated to the content of the demonstrator's
speech. As we have repeatedly explained, government regulation of
expressive activity is "content neutral" if it is justi?ed without

reference to the content of regulated speech.28
The Court also held that the statute was narrowly tailored and left
open ample alternatives for communication, observing that it only
restricted the location where communication could take place, and
noted that no limitations were placed on the number, size, or content
of text or images portrayed on protestors' signs.29 "Under this
statute, absolutely no channel of communication is foreclosed. No
speaker is silenced. And no message is prohibited."30
Content-neutral regulation of speech means the restrictions are placed
on speech regardless of what the speaker has to say. Such
content-neutral regulations that interfere with what otherwise would
be First Amendment protected expression are examined under a balancing
test, comparing the state's interest in prohibiting the activity in
question to the level of interference with the speaker which is often
determined by looking at available avenues of communication.
Demonstration Zones
(c) Mark C. Ide

The undeniable and very serious concerns about safety and security at
public venues that attract large-scale protest activity have been
described by one court as follows: "We have come to a point where it
may be anticipated at…national security events, that some signi?cant
portion of demonstrators among those who want the closest proximity
to…participants, consider assault, even battery, part of the arsenal
of expression. And as a consequence, those responsible for safety must
plan for violence."31 Where it can be reasonably anticipated that an
event likely will attract threats from persons seeking to carry out
criminal acts to disrupt the proceedings and bring attention to
extremist political causes, law enforcement preparations commonly
include the proactive imposition of demonstration zones or security
zones as a means of providing some measure of physical security to the
event.
Both free-speech zones that designate restricted areas within which
protest activity may take place and speech-free zones that prohibit
protest activity from taking place within designated areas have been
employed and often in conjunction with each other.32 An analysis of
the relatively few cases concerning the legality of demonstration
zones re?ects that the challenged security measures were indisputably
content neutral and that there was no doubt as to the importance of
the government interest in maintaining security at special events,

such as political conventions.33 Accordingly, the decisions turn
predominantly on the resolution of whether the array of security
precautions were narrowly tailored to meet the security interest at
stake and whether those precautions left open ample alternative
avenues of communication.
In response to events surrounding the 1999 World Trade Organization
(WTO) conference in Seattle, a restricted zone was implemented by the
city in response to actual physical obstruction of the conference
venue, property damage, and other violent acts committed by
protestors.34 Under the city's emergency order, protestors were
completely barred from entering a designated restricted zone—in First
Amendment terms, a no-speech zone—that covered the convention site and
hotels where the WTO delegates were staying.35
The U.S. Court of Appeals for the Ninth Circuit found that the
restricted zone "was not a regulation of speech content, but rather
was 'a regulation of the places where some speech may occur.'"36 In
reaching that conclusion, the court applied the traditional time,
place, and manner analysis, ?nding both that 1) the order itself made
no reference to the content of speech and 2) the fact that the order
"predominantly affected protestors with anti-WTO views did not render
it content based."37 The court next determined that the measure was
narrowly tailored to serve the government's interest in maintaining
public order. "In the face of a violent riot, the City had a duty to
restore order and to ensure the safety of WTO delegates and the
residents of Seattle. The City also had an interest in seeing that the
WTO delegates had the opportunity to conduct their business at the
chosen venue for the conference; a city that failed to achieve this
interest would not soon have the chance to host another important
international meeting."38
The court noted that "a municipality is required to provide tangible
evidence that speech-restrictive regulations are necessary to advance
the proffered interest in public safety."39 Although the city was not
required to choose the least restrictive alternative, the court
indicated that an assessment of alternatives still can bear on the
reasonableness of the tailoring of the restriction and whether it is
narrowly tailored as required. "We have said that 'if there are
numerous and obvious less-burdensome alternatives to the restriction
on [protected] speech, that is certainly a relevant consideration.'"40
Finally, the court resolved what it described as a very dif?cult
question, in holding that ample alternative channels of communication
were available to the demonstrators outside the restricted zone.41 On

the one hand, the protestors were not permitted to protest directly in
the presence of the delegates they presumably sought to in?uence. On
the other hand, the protestors were able to demonstrate and express
their views immediately outside the restricted zone, including areas
directly across the street from WTO venues. Ultimately, the court
concluded that the protestors could reasonably expect their protest to
be visible and audible to delegates even if not as proximate as the
protestors might have liked. Citing the U.S. Supreme Court's holding
in Hill, the court concluded, "Appellants argue that they were
prevented from communicating with the WTO delegates at close range,
but there is no authority suggesting that protestors have an absolute
right to protest at any time and at any place, or in any manner of
their choosing."42
While the WTO case concerned a reactive response to actual civil
disorder, the government interest in maintaining security and order
can be adequately supported through observation and analysis of past
occurrences to identify tactics that might be used by violent
demonstrators at future events. In engaging in security preparation
and planning, any proactive restrictions imposed on protest activity
must be narrowly tailored to meet the anticipated threat and also must
leave open adequate alternative means for expression. In Service
Employee International Union 660 v. City of Los Angeles, the court
considered–nearly a month in advance of the event–proposed security
restrictions surrounding the 2000 Democratic National Convention in
Los Angeles.43 The Los Angeles police, in conjunction with the U.S.
Secret Service and other agencies, imposed a very large secured zone
that encompassed the convention facility and involved the closing of
several public streets. No protest activity would be permitted within
the secured zone. Outside the secured zone, a designated demonstration
zone was set up about 260 yards from the entrance to the convention
facility, where a platform, a sound system, and portable toilets were
provided to facilitate protest activity.44 In justifying the security
and demonstration zones, the government did not suggest that the
protestor's speech itself created a safety issue. Rather, the
government sought to safeguard against risks generally associated with
1) the presence of prominent people at the event, 2) the fact that the
convention was a real and symbolic target for terrorist activity, and
3) the fact that a large media concentration could encourage groups to
become violent to attract attention to their causes.45
The court found that the proposed security zone was not narrowly
tailored because it burdened more speech than was necessary.46 The
principal problem with the secured area was its size—it covered
approximately 185 acres of land— combined with its con?guration that

prevented anyone with any message from getting within several hundred
feet of the entrance to the venue where delegates would arrive and
depart. The court concluded that while there was no dispute that a
narrowly tailored zone is constitutionally permissible to ensure that
delegates can enter and exit the venue safely, the secured zone
covered much more area than necessary to serve that interest.47
The court also found that the demonstration zone was not an adequate
alternative for speech, rejecting, in part, the city's claim that
there would be a sight line to the convention facility, concluding,
instead, that the "distance ensure[d] that only those delegates with
the sharpest of eyesight and most acute hearing have any chance of
getting the message, that is, assuming that the 'sight line' is not
blocked during the convention."48 The court noted that whether a sight
line existed at all was a "questionable assumption" because a
10,000-person media area would lie directly between the demonstration
zone and the convention center entrance.49
In United for Peace and Justice v. City of New York, a group opposing
the war in Iraq applied, 3 weeks in advance, for a permit to authorize
a parade of up to 10,000 people to march in front of the United
Nations (UN) headquarters in New York City.50 The city refused to
allow the demonstrators to march in front of the UN as requested
because the police determined that they could not provide adequate
security for the event, even though the road where the march would
take place was six lanes wide and there would be almost 40 feet
between the marchers and the outer fence protecting the UN.51 The
city, however, did permit the marchers to conduct a large stationary
demonstration con?ned to Dag Hammarkjold Plaza, where the
demonstrators had intended to begin the parade.52
The U.S. District Court upheld the denial of the permit distinguishing
the requested event from other large-scale parades commonplace in New
York City.53 Important to the court's decision was testimony from the
police that detailed the rather disorganized nature of the proposed
march, with widely varying estimates of the number of participants and
no reliable contact information regarding the various participating
organizations. According to the police, past approved parade permits
typically involved regularly recurring events where applications were
submitted well in advance and contained speci? c details about the
number of participants. Further, in approved parades, there were
opportunities for meetings between the police and the organizers to
jointly discuss issues, such as the manner of protest, means of
formation, and spacing of demonstrators along the route.

The district court found that the restrictions imposed were not
substantially broader than necessary to achieve the city's interest in
public, participant, and of?cer safety.54 The Second Circuit Court of
Appeals af?rmed, ?nding that "short notice, lack of detail,
administrative convenience, and costs are always relevant
considerations in the fact-speci?c inquiry required in all cases of
this sort."55 The court cautioned that "these factors are not
talismanic justi?cations for the denial of parade permits" and
"[l]ikewise, simply offering an alternative of stationary
demonstration does not end the analysis."56
In Stauber v. City of New York, the court considered, inter alia, a
challenge to the New York City Police Department's practice of using
barricades or "pens" to contain and control demonstration activity.57
The pens, in this instance, were "metal interlocking barricades…in
which demonstrators were required [by police] to assemble" and from
which they were not permitted to leave, even to go to the bathroom.58
The court, ?nding that the pens policy violated the First Amendment
because it was not narrowly tailored, issued a preliminary injunction
against "unreasonably restricting access to and participation in
demonstrations through the use of pens."59 Although the city had a
legitimate interest in regulating the demonstrators to prevent
violence, the court held that completely enclosing demonstrators
within the pens and preventing their movement was not a suf? ciently
narrowly tailored speech regulation.60
Stauber contained an extensive factual record concerning how the pens
actually were used to essentially herd and very restrictively con?ne
persons who wanted to exercise their right to protest throughout the
duration of the protest. It should be noted, however, with a different
factual record before it, a court has observed that a "barricaded
enclosure for demonstrators… is a practical device used by the police
to protect those actively exercising their rights from those who would
prevent its exercise," such as counterdemonstrators.61
(c) Mark C. Ide
The legality of a demonstration zone imposed at the 2004 Democratic
National Convention was upheld by the U.S. Court of Appeals for the
First Circuit in Bl(a)ck Tea Society v. City of Boston.62 This event
was the ?rst national political convention to be held following the
September 11, 2001, terrorist attacks on New York's World Trade Center
that were launched from Boston's Logan Airport and was designated as a
national special security event, thereby placing the Secret Service
directly in charge of security.63 The Boston Police Department acted

in conjunction with the Secret Service to enforce two different
restrictive zones in the vicinity of the FleetCenter convention venue
located in downtown Boston. A so-called "hard security zone"
encompassed an area immediately surrounding the FleetCenter, and a
so-called "soft security zone" encompassed certain public streets
adjacent to the hard zone. The Secret Service restricted access within
the hard security zone to convention business only and no protestors
were permitted within that zone. The soft zone was controlled by the
city and remained open to the general public, including demonstrators
who were subject to certain permit and crowd-control measures.64 Among
these was the creation of a designated demonstration zone, the major
issue of contention in the case.65
The demonstration zone was described by a U.S. District Court judge as
follows based on an actual visit to the site:
The "designated demonstration zone" [DZ] is located in the soft
zone…[and] is a roughly rectangular space of approximately 26,000 to
28,000 square feet–very approximately 300 feet by 90 feet.… A written
description cannot begin to convey the ambiance of the DZ site as
experienced during the view. Most–at least two thirds of the DZ lies
under unused Green Line tracks [elevated train tracks].… It is a grim,
mean, and oppressive space whose ominous roof is supported by a forest
of girders that obstruct sight lines throughout as the tracks slope
downward towards the southern end.… The City is providing a sound
system and will allocate access to the stage itself through a
permitting system…. During the view, I observed that a person of
normal height could not carry a sign underneath it without lowering it
to head level or lower. If that were done, no one on the other side of
the girders would be able to see it once it was raised again beneath
the tracks.… The DZ is surrounded by two rows of concrete jersey
barriers. Atop each of the jersey barriers is an eight foot high chain
link fence. A tightly woven mesh fabric, designed to prevent liquids
and objects from being thrown through the fence, covers the outer
fence, limiting but not eliminating visibility. From the top of the
outer fence to the train tracks overhead, at an angle of approximately
forty-?ve degrees to horizontal is a looser mesh netting, designed to
prevent objects from being thrown at the delegates."66
Even though the district court found that the overall impression
created by the demonstration zone was "that of an internment camp," it
concluded that the design of the demonstration zone was narrowly
tailored "given the constraints of time, geography, and safety."67 In
reaching this conclusion, the court noted that the demonstration zone
was placed at a location suggested by the American Civil Liberties

Union and the National Lawyers Guild, counsel for the groups that
challenged the restrictions, and was the only available location
providing a "direct interface between demonstrators and the area where
delegates will enter and leave the FleetCenter."68 As it happened,
this location included some unfortunate geographic and structural
constraints, such as the sight-obstructing girders and low clearance
presented by the overhead tracks, that were not susceptible to timely
modi? cation by the government.
With respect to those features that were subject to modi?cation, such
as the barriers, multiple layers of fencing, mesh, and netting, the
court determined that each of these were adequately supported,
reasonable security precautions. The court's conclusion was based on
testimony from various law enforcement personnel's past experience at
comparable events, including the 2000 Democratic National Convention
in Los Angeles.
The double fence is reasonable in light of past experience in which
demonstrators have pushed over a single fence. A second fence may
prevent this altogether, or at least give police of?cers more time to
respond and protect the delegates. The liquid dispersion fabric is
reasonable in light of past experience in which demonstrators have
squirted liquids such as bleach or urine at delegates or police. The
overhead netting is reasonable in light of past experience in which
demonstrators have thrown objects over fences. The razor wire atop the
Green Line tracks…is reasonable in light of the possibility of
demonstrators climbing upon the tracks and using them as an access
point to breach the hard zone perimeter and/or rain objects on
delegates, media, or law enforcement personnel from above.69
In short, given the unique circumstances presented, there was "no way
to 'tweak' the DZ to improve the plaintiffs' free speech opportunities
without increasing a safety hazard."70
On appeal, the First Circuit af?rmed the decision of the district
court. While noting that the security measures at the convention
"dramatically limited the possibilities for communicative intercourse
between the demonstrators and the delegates...[and] imposed a
substantial burden on free expression," the court found that past
experiences with large demonstrations created a "quantum of 'threat'
evidence...suf?cient to allow the trier to weigh it in the balance."71
The court indicated that the question was not whether the government
can make use of past experience to justify security measures–it most
assuredly can–but the degree to which inferences drawn from past
experiences are plausible.

While a government agency charged with public safety responsibilities
ought not to turn a blind eye to past experience, it likewise ought
not to impose harsh burdens on the basis of isolated past events. And,
in striking this balance, trial courts should remember that heavier
burdens on speech must, in general, be justi?ed by more cogent
evidentiary predicates.72
The court said that unfounded speculation about potential violence
cannot justify an insuf?ciently tailored restriction on expression. On
the other hand, law enforcement of?cials may draw upon experiences of
other cities or entities that have hosted comparable events when
assessing the type of security measures necessary to police an
upcoming event. The reality that some demonstrators at other recent
large political events had engaged in acts, such as pushing over
fences and throwing objects over barricades, was deemed to be clearly
relevant to the safety risk posed to delegates at the 2004 Democratic
National Convention. Nevertheless, while not requiring a showing of
event-speci? c intelligence, the court found the lack of speci?c
information in the record about a risk of violence speci?c to the
event "troubling in light of the particularly stringent restrictions
that were imposed."73
The court also found that viable alternative means existed to enable
protestors to communicate their messages. The demonstration zone did
provide an opportunity for expression within the sight and sound of
the delegates, "albeit an imperfect one." Two other considerations
were deemed to be pertinent to the analysis and were described as
follows:
First, although the opportunity to interact directly with the body of
delegates by, say, moving among them and distributing literature,
would doubtless have facilitated the demonstrator's ability to reach
their intended audience, there is no constitutional requirement that
demonstrators be granted that sort of particularized access. Second,
we think that the appellants' argument greatly underestimates the
nature of modern communications. At a high pro?le event, such as the
convention, messages expressed beyond the ?rsthand sight and sound of
the delegates nonetheless has the propensity to reach the delegates
through television, radio, the press, the Internet and other
outlets.74
Thus, on balance, the importance of providing demonstrators with some
measure of physical connection to an event venue, such as relatively
proximate line-of-sight access, may be lessened where there are other
available outlets for effective communication.

(c) Mark C. Ide

Conclusion
It has been said that "the greater the importance of safeguarding the
community from incitements to the overthrow of institutions by force
and violence, the more imperative is the need to preserve inviolate
the constitutional rights of free speech, free press and free assembly
in order to maintain the opportunity for political discussion, to the
end that that government may be responsive to the will of the people
and that changes, if desired, may be obtained by peaceful means."75
Freedom of expression, especially the expression of political views,
ranks near the top of the hierarchy of constitutional rights.76
Despite the importance of that right, the protections of the First
Amendment are not without limits. Reasonable restrictions as to the
time, place, and manner of speech in a public forum are permissible
provided those restrictions are justi?ed without reference to content,
are narrowly tailored to serve a signi?cant government interest, and
leave open ample alternative channels for communication of the
protestors' message.
No one can seriously dispute that the government has a signi?cant
interest in maintaining public order; indeed, this is a core duty that
the government owes its citizens. Security measures may inevitably
require the imposition of restrictions on large numbers of peaceful
protestors to effectively address the threat posed by a violent few
among them. Courts have recognized this inherent dilemma and that the
public interest cuts both ways. Freedom of expression is vital to the
health of democracy but making public safety a reality and ensuring
that important political and social events are able to proceed
normally also are valuable.77 While a case-by-case determination must
be made in consideration of the unique geographic, logistical, and
security challenges posed by an actual event, a safety net is cast too
broadly if it restricts protest activity unduly in too large of an
area and, thus, is not narrowly tailored. However, courts generally
will not strike down government action for failure to leave open ample
channels of communication unless the government action will foreclose
an entire medium of public expression across the landscape of a
particular community or setting. A time, place, or manner restriction
does not violate the First Amendment simply because there is some
imaginable alternative that might have been less burdensome on speech.
The U.S. Supreme Court has instructed that the First Amendment does
not require that individuals retain the most effective means of
communication, only that individuals retain the ability to communicate
effectively.78

Endnotes
1 Quotation retrieved from http://www. tocqueville.org.
2 See, e.g. 18 U.S.C.A. §2331(1)(B) (iii); 18 U.S.C. § 2332b(f), (g).
Annex II of National Security Presidential Directive (NSPD) 46 and
Homeland Security Presidential Directive (HSPD) 15 designate the FBI
as the lead federal agency for counterterrorism.
3 The First Amendment to the U.S. Constitution provides "Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press, or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances."
The question of whether state action deprives a person of the "liberty
of expression" guaranteed by the First Amendment is analyzed under the
Due Process Clause of the Fourteenth Amendment. See, e.g. Gitlow v.
New York, 268 U.S. 652 (1925).
4 Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 (1969)
(describing the privilege of citizens to assemble, parade, and discuss
public questions in streets and parks while striking down a parade
ordinance that gave the government complete discretion to prohibit any
"'parade,' 'procession' or 'demonstration' on the city's streets or
public ways").
5 The three types of forums on government property are 1) traditional
public forum (e.g., streets, sidewalks, and parks); 2) designated or
limited public forums (e.g., state university meeting facility,
municipal theater, school board meeting rooms, or other place opened
to the public as a place for certain forms of expressive activity); 3)
nonpublic forums (e.g., government of?ces, jailhouses, military bases,
polling places, or other place operated by the government as a
proprietor and not made accessible to the public for expressive
activity). See International Society for Krishna Consciousness v. Lee,
505 U.S. 672, 678 (1992) (Holding that an airport concourse was not a
public forum, "The government need not permit all forms of speech on
property that its owns or controls. Where the government is acting as
proprietor, managing its internal operations, rather than acting as a
lawmaker with the power to regulate or license, its actions will not
be subject to the heightened review to which its actions as lawmaker
may be subject.").
6 See Cox v. New Hampshire, 312 U.S. 569, 576 (1941) ("If a
municipality has authority to control the use of its public streets
for parades or processions, as it undoubtedly has, it cannot be denied

authority to give consideration, without unfair discrimination to
time, place and manner, in relation to other proper uses of the
streets.").
7 Niemotko v. Maryland, 340 U.S. 268, 273 (1952) (J. Frankfurter, concurring).
8 The U.S. Supreme Court found that picketing and marching in public
were protected as free speech in Thornhill v. Alabama, 310 U.S. 88
(1940). In subsequent rulings, the Court established that regulations
affecting time, place, and manner of demonstrations were lawful but
that government discrimination based on the content or viewpoint of
speech was prohibited by the First Amendment. See, e.g., Edwards v.
South Carolina, 372 U.S. 229, 237 (1963) ("The Fourteenth Amendment
does not permit a State to make criminal the peaceful expression of
unpopular views."); Cox v. Louisiana, 379 U.S. 559, 563 (1965) ("The
conduct which is the subject of this statute–picketing and parading–is
subject to regulation even though intertwined with expression and
association."); Adderly v. Florida, 385 U.S. 39, 48 (1966) (Persons
who want to "propagandize protests or views" do not have "a
constitutional right to do so whenever and however, and wherever they
please.").
9 See, e.g. U.S. v. Grace, 461 U.S. 171, 177 (1983) ("It is also true
that 'public places' historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks, are
considered, without more, to be 'public forums.' In such places, the
government's ability to permissibly restrict expressive conduct is
very limited: the government may enforce reasonable time, place and
manner regulations….") (emphasis added, internal citations omitted).
10 See, e.g., Tinker v. Des Moines Independent School District, 393
U.S. 503, 508 (1969).
11 See Cox v. Louisiana, 379 U.S. at 563.
12 Cox v. New Hampshire, 312 U.S. at 574 ("Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be
lost in the excesses of unconstrained abuses. The authority of a
municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the
means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need.").

13 This example retrieved from http:// www.? rstamendmentcenter.org.
14 See Forsythe County, Ga. v. Nationalist Movement, 505 U.S. 123
(1992) (A county ordinance permitting a government administrator to
vary the fee for assembling or parading to re?ect the estimated cost
of maintaining public order was facially unconstitutional due to the
absence of narrowly drawn, reasonable, and de? nite standards to guide
the fee determination and because it required the administrator to
examine the content of messages to estimate the public response and
cost of public service necessitated by the parade or assembly.).
15 The use of designated demonstration zones or security zones in
which no protest activity is permitted has been the subject of
substantial commentary suggesting that the practice should be viewed
as a form of content discrimination or as a "prior restraint" on
speech. Courts have generally not been receptive to that suggested
interpretation. See, e.g., "Capturing the Dialogue: Free Speech Zones
and the 'Caging' of First Amendment Rights," 54 Drake L. Rev. 99
(2006); "Speech and Spatial Tactics," 84 Tex. L. Rev. 581 (2006).
16 The "prior restraints" doctrine encompasses a wide range of
activity but is chie?y concerned with government suppression of speech
by enjoining publication. See, e.g., "Prior Restraints," 883 PLI/Pat 7
(November 2006) (contains a comprehensive digest of cases on the
topic).
17 New York Times Co. v. U.S., 403 U.S. 713, 714 (1971) (internal
quotations and citations omitted); See Madsen v. Women's Health
Center, Inc., 512 U.S. 753, 764, FN 2. (1994) ("Not all injunctions
that may incidentally affect expression, however, are 'prior
restraints'…. Here petitioners are not prevented from expressing their
message in any one of several ways…moreover, the injunction was not
issued because of the content of petitioner's expression…."); Schenck
v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 374, FN 6. (1997)
("As in Madsen, alternative channels of communication were left open
to the protestors….").
18 See "Balancing the Right to Protest in the Aftermath of September
11," 40 Harv. C.R.-C.L. Rev. 327, 330 (2005).
19 Id.
20 See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("[T]he
government may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions are justi?ed

without reference to the content of the regulated speech.…").
21 Id.
22 City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 48-49
(1986) (internal quotation marks and citation omitted).
23 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448
(2002) (J. Kennedy, concurring).
24 See Ward, 491 U.S. at 799-800. Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 (1984). Frisby v. Schultz, 487 U.S.
474, 481 (1988).
25 Coalition to Protest the Democratic Nat'l Conv. v. Boston, 327 F.
Supp. 2d 61, 70 (D. Mass. 2004) (quoting Ward, 491 U.S. at 800).
26 530 U.S. 703 (2000).
27 Id. at 707.
28 Id. at 719-720.
29 Id. at 734.
30 Id.
31 Coalition to Protest, 327 F. Supp. 2d at 77.
32 The case law re?ects that crowd-control measures intended to
control protest activity have involved various forms and degrees of
restriction deemed necessary by government of?cials to accommodate the
safety and security requirements posed by the unique physical
environments of speci?c venues. At least one commentator, who has
expressed concern that demonstration zones can be used to impose
content or viewpoint censorship, described such activity as the use of
"spatial tactics." See "Speech and Spatial Tactics," 84 Tex. L. Rev.
581 (2006).
33 The FBI de?nes a special event as a "signi?cant domestic or
international event, occurrence, circumstance, contest, activity, or
meeting which by virtue of its pro?le and/or status represents an
attractive target for a terrorist attack." Manual of Investigative
Operations and Guidelines (MIOG) 300-1(2). This de?nition is not
limited to threats of international terrorism, but, rather, includes

threats posed by domestic anarchist groups whose members may commit
violent acts at demonstrations. See A Review of the FBI's
Investigative Activities Concerning Potential Protestors at the
Democratic and Republican National Political Conventions, U.S.
Department of Justice, Of?ce of the Inspector General, (April 27,
2006), 10. In addition to the FBI's responsibilities concerning
special events, the U.S. Secret Service is statutorily authorized to
provide security to protected of?cials at national special security
events designated by the secretary of the Department of Homeland
Security. See 18 U.S.C. 3056(e)(1).
34 See Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005).
35 Id. at 1125.
36 Id. at 1129.
37 Id.
38 Id. at 1131-1132.
39 Id. at 1131.
40 Id. at 1131, FN41.
41 Id. at 1138.
42 Id. at 1138-1139.
43 114 F. Supp. 2d 966 (C.D. Cal. 2000).
44 Id. at 966.
45 Id. at 971, FN2.
46 Id. at 971.
47 Id. at 971.
48 Id. at 972.
49 Id.
50 243 F.Supp. 2d. 19 (S.D. N. Y. 2003).

51 Id. at 24 (Since the terrorist attacks at the World Trade Center on
September 11, 2001, the city had banned all demonstrations, parades,
or other public events in front of the United Nations and U.S.
Mission. The court applied the narrowly tailored test to this total
ban in light of the security concerns posed by the requested march.).
52 Id. at 20.
53 Id. at 25-28.
54 Id. at 20-31.
55 323 F.3d 175, 178 (2nd Cir. 2003).
56 Id.
57 2004 WL 1593870 (S.D.N.Y. 2004).
58 Id. at 28.
59 Id. at 2,6,34.
60 Id. at 29.
61 Oliveri v. Ward, 801 F.2d 602, 607 (2nd Cir. 1986).
62 378 F.3d 8 (1st Cir. 2004).
63 A comprehensive statement of the facts surrounding this litigation
is contained in the district court opinion. See Coalition to Protest,
327 F. Supp. 2d 61 (D. Mass. 2004).
64 Id. at 71-72 (The court noted that the city provided "nuanced,
reticulated options for many different types of expression within the
soft zone…. Inside it, plaintiffs may conduct small demonstrations
with no permits whatsoever, and may conduct 21-50 person stationary
demonstrations on an expedited permitting basis. Anyone may distribute
lea?ets or hold signs.").
65 Id. at 66-67.
66 Id.
67 Id. at 74-75.

68 Id. at 75.
69 Id.
70 Id at 76.
71 378 F.3d. at 13-14.
72 Id. at 14.
73 Id. at 17 (Lipez, Circuit Judge,
concurring).
74 Id. at 14.
75 De Jonge v. Oregon, 299 U.S. 353, 365 (1937).
76 See 378 F.3d. at 11-12.
77 Id. at 15.
78 409 F.3d at 1138, FN 48 (citing City Council v. Taxpayers for
Vincent, 466 U.S. 789, 812 (1984)).
Law enforcement officers of other than federal jurisdiction who are
interested in this article should consult their legal advisors. Some
police procedures ruled permissible under federal constitutional law
are of questionable legality under state law or are not permitted at
all.

 

 

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