A lot of parks are
more than a quarter of a mile across. Suppose the President's staff announced
that he would be speaking in a particular city but did not specify a
location-perhaps for security reasons. The city then set up different places
(parks across a street from each other) for pro- and anti-Bush demonstrations.
President Bush then appeared at or near the location selected for the pro-Bush
demonstrators, and as far away as possible from the location of the anti-Bush
demonstrators. That could easily be more than a quarter of a mile away. Does
anyone want to argue that in so doing the President would have violated the
First Amendment? Or that the city would then have to change the permitted
locations or allow anti-Bush protesters onto the pro-Bush
site?
[Bryan
Wildenthal]
I think the answer to the latter question is almost
surely YES.
Is the question whether the anti-Bush
demonstrators are entitled to use the publicity attracted by the President's
appearance to advance their message? Or maybe we could ask whether it is
permissible for the President to appear at what is essentially a closed
meeting in what would otherwise be a public forum (a park or town
square)?
[Bryan
Wildenthal]
Answer to the latter: almost surely NO.
Unless we are to suppose that U.S. Presidents have some sort of royal
prerogative to appear in public fora "cleansed" of protesters. I had
thought that notion went out with the original "King George." Apparently
US Attorney Strom Thurmond Jr thinks otherwise. Perhaps that's what we
get by treating US Attorney positions as hereditary boons to the children
of loyal servants of His Majesty.
I'd assume that when he appears at the
Republican convention next year, anti-Bush protesters may legitimately be
excluded from the building - but can a park be closed to those who quietly and
nondisruptively show disagreement with a group that is holding an event at the
park?
[Bryan
Wildenthal]
I'm hoping that Mark's
answer to his rhetorical question, like mine, would be NO. And I don't even think they need to be "quiet."
Physically non-"disruptive," OK, I'll give Mark
that.
I reserve a small
local park (or a part of it) for my daughter's birthday party (under a first
come first served signup policy). Does the First Amendment prohibit the city
from allowing me to exclude persons from the park (or from the reserved part
of it) who want to picket (carrying signs saying "Down with law professors and
their children!")?
[Bryan
Wildenthal]
Unfortunately, yes. I think that is the price
one would pay for choosing to use a traditional public forum for the
event. Incidentally, Mark may have intended this as an amusing but
unrealistic hypo, but actually this kind of thing happens in the real
world. Gay people and their families frequently have been forced to
put up with very serious instances of this kind of political protest.
Anti-gay religious groups like Kansas minister Fred Phelps have frequently
picketed and protested at same-sex marriage and commitment ceremonies,
funerals of known gay people (such as Matthew Shepard), and even at
christening ceremonies for the infant adopted children of gay couples in
at least two cases I have heard of, in Kentucky and New Jersey. The
protesters typically stake out public sidewalks or parks adjacent to
where the events are being held and hold charming signs saying things like
"God Hates Fags" and "Burn in Hell, Matthew." So gay people are quite familiar with the First
Amendment costs of those who would argue "Down with gay people and their
children!" And as a gay First Amendment fanatic, I would defend the
right of such protesters to express such sentiments in traditional public
fora.
My tentative view is
that a political rally is a little like the parade in Hurley; if my group
obtains the right to use the venue (under content and viewpoint neutral time
place and manner regulations), then we can exclude persons who wish to put
forward a contrary message.
[Bryan
Wildenthal]
Weeellllll, I would agree with Mark in the sense of
"exclude" them from the identifiable march or rally itself -- but not exclude
them from the entire public forum or vicinity, unless it is simply unfeasible
to accommodate more than one group simultaneously. Hurley involved a
march on a public street, where it seems "one group at a time" may be dictated
by feasibility. But if one group wants to hold a rally or a march in a
park, I think the First Amendment provides a very high level of protection
toward any group that wants to hold a competing "counter-rally/march"
nearby.
If that is right, then are Presidential
appearances different, as a constitutional matter, from political rallies? My
intuition is that they should be treated differently, and that citizens should
have the right to attend and to protest (quietly and nondisruptively),
assuming the event is not held out as being a political rally. The President
represents the government - in a sense he is the executive branch of the
government - and perhaps the right to assemble and petition for redress of
grievances gives protesters the right to attend the event, if the event is
otherwise open to the public and if the President is speaking as President,
not as party leader.
[Bryan
Wildenthal]
For reasons suggested above, I don't see why this
distinction matters -- and I think the very idea of such a distinction is
troubling to First Amendment principles -- and I think the distinction cannot
realistically be applied. I think the President -- and any politician or
political figure -- must accept the price of protesters regardless
of whether he claims he is appearing in a political or governmental capacity,
so long as the appearance is in a forum subject to the usual First Amendment
rules. Who could possibly separate those capacities? Presidents
mix and blend the two roles past the point of any reasonable ability to
distinguish, except in an utterly subjective and arguable sense that people
would never find consensus on.
