Free Speech Zones

Brian Leiter says that if us libertarian-minded bloggers aren't blogging about the ridiculous "free speech zones" at the Democratic National Convention, we ought to resign from the human race. That's a little strong, I'd say, but I certainly agree with him on the absurdity of what is going on. You can see pictures of the cage they're putting protestors in here and a description of this hospitable place here:

Demonstrators who want to be within sight and sound of the delegates entering and leaving the Democratic National Convention at the Fleet Center in Boston this coming week will be forced to protest in a special "demonstration zone" adjacent to the terminal where buses carrying the delegates will arrive. The zone is large enough only for 1000 persons to safely congregate and is bounded by two chain link fences separated by concrete highway barriers. The outermost fence is covered with black mesh that is designed to repel liquids. Much of the area is under an abandoned elevated train line. The zone is covered by another black net which is topped by razor wire. There will be no sanitary facilities in the zone and tables and chairs will not be permitted. There is no way for the demonstrators to pass written materials to the convention delegates.

A lawsuit was filed on first amendment grounds against this, and the judge in that case had this to say:

"I, at first, thought before taking the view [of the site] that the characterizations of the space as being like an internment camp were litigation hyperbole. I now believe that it's an understatement. One cannot conceive of what other elements you would put in place to make a space more of an affront to the idea of free expression...."

So what did the judge do about it? Zip. Nada. Zilch. Not a goddamn thing. He ruled against the protestors and said that putting them in this cage was justified by the risk to the safety of the delegates to the convention. Unbelievable.

This is hardly the first time this has happened. Such "free speech zones" (Mr. Orwell, call your office) are the norm at all events at which President Bush appears, and much the same will occur at the Republican National Convention in New York. In 1992, the Clinton administration tried to limit the protests of pro-life groups and keep them far away from the inauguration, but the ACLU filed suit on their behalf and won. And now you see why so many of us libertarian-minded folks don't see much difference between the two major parties. They each relentlessly attempt to censor the other side when it serves their purposes. All of the talk from Republicans about "smaller government" and being a beacon of freedom and liberty to the world is simply bullshit, empty words that mean nothing to them. And all of the talk from Democrats about their passionate support of individual rights? Also bullshit. Don't believe anything either one says about civil liberties. They will sell you out in a heartbeat.

And this is nothing new, by the way. Less than 10 years after the first amendment was passed guaranteeing freedom of speech and freedom of the press, under the leadership of many of the very men who wrote those words, Congress passed and John Adams signed, the Sedition Act. That act said:

That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States...shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Several prominent newspaper editors were jailed under this act, including Benjamin Franklin's grandson. During the civil war, Lincoln suspended habeas corpus and arrested some 13,000 copperhead Democrats, a group that opposed the war and tried to broker a peace agreement. They were held in military prisons with no charges filed and no access to the legal system (sound familiar, Mr. Bush?).

In 1917, Congress passed the Espionage Act. That act declared it a crime to advocate by speech anything that

"shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the U.S."

This was interpreted to prohibit any criticism of the US entering World War I in Europe, and over 2000 people were arrested on these obviously fraudulent grounds. In one overlooked irony of the situation, the maker of a film entitled The Spirit of '76, which depicted British atrocities against those who fought in the American Revolution, was arrested and charged with violating the Espionage Act. Why? Because, as the judge said, the film might cause Americans "to question the good faith of our ally, Great Britain." In a case ironically titled U.S. v. Spirit of '76, the filmmaker was sentenced to 10 years in prison. By the way, the Espionage Act remains on the books today and was upheld by the Supreme Court in a decision written by Oliver Wendell Holmes. In fact, it was extended in 1940 under the Smith Act to be applicable in peacetime as well, and during WW2, hundreds of socialists were arrested under those provisions.

So frankly, I don't care which party it is, when they start talking about the glories of free speech, I start loading my gun. They will take it away in a heartbeat if they can, and in times of war, officially declared or not, both the courts and the public will roll over and play dead rather than stand up to such intrusions on the bill of rights. So when John Kerry gets up there tonight and reads eloquent words from the teleprompter about how America is a shining beacon of freedom to the world, remind yourself that his party and his convention has stifled free speech and penned up protestors in a cage surrounded by razor wire a half a mile down the road. And when Bush does the same thing in New York, remind yourself that he's been doing the same thing for 4 years now.


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Excellent post.

I am willing to exonerate John Adams, at least partially, because "restricting the freedom of speech, or of the press" had a well-established leagal meaning in English jurisprudence at the time: It meant that no prior restraints could be used. It broke new ground when Madison and others interpreted the First Amendment to mean that no subsequent restraints could be imposed either. Madison was right, of course, but Adams had at least some precedent on his side.

Good general points. Only problem is the cops have NOT been herding protesters into that cage (which is pretty empty most of the time), and you can put your signs right in the face of delegates on Causeway Street, where you're separated from them only by a fairly low metal barrier. Ditto for Quincy Market, where, at least on Tuesday, I saw quite a few convention passes mingling amidst all the protesters (and yes, cops on horseback, cops with dogs, cops in full SWAT-team regalia). I can only hope this is because Boston is, at heart, more receptive to protests than other places - even if it did come up with the cage.

I understand the philosophy underlying your post, but you should know that outside the cage, free speech is alive and well in Boston.

The protestors are everywhere: on the Boston Common; on Causeway Street in front of the convention proper; at Quincy Market; at Copley Square; and at City Hall, to name a few. They are handing out pamphlets, beating drums, sounding horns, shouting and talking and dancing. And arguing with each other loudly.

The cops are watching, but they aren't herding and they aren't silencing and there is no viewpoint suppression. About the only thing they're doing is keeping opposing shouters from killing each other.

I posted on my site about the cage, negatively, and I agree it is a strong symbol of suppression. But it isn't actually suppressing anything.

As a Bostonian, I'm very proud of the way the city has handled dissent. You can count the arrests on one hand.

Oh and, by the way, the cage is across the street from the convention building, adjacent to the buses where the delegates arrive. Not "half a mile."

I can't speak for New York, because I haven't seen the plans, but Boston understands freedom.

Well I'm certainly happy to hear from carpundit and adamq that the cage isn't actually being used. And my criticism was never aimed at Boston, which certainly has a stronger free speech tradition than most places could ever claim. It was aimed at the party for setting up such a thing in the first place, and at the judge who upheld at after admitting that it was an affront to free speech.

I could be wrong on this, but my understanding is that most of the absurdly named "free speech zones" that have been set up at political and public presidential functions over the past few years have been set up by, and in fact, demanded by, the U.S. Secret Service on grounds of "security."
And there have been successful court challenges. In the most recent instance, widely blogged and fairly widely reported, two FEMA workers were arrested in a North Carolina city [name escapes me at the moment] recently for turning up at a Bush public event [not listed as campaign event] wearing anti-Bush tee shirts.Ordered to remove the tee shirts or leave immediately. They refused, which took some courage I think. Charge was some form of trespass. ACLU promptly intervened, informing the city involved of recent suit ACLU brought against the Secret Service vis-a-vis "free speech zones" which it [the ACLU] won and the Secret Service agreed as part of a settlement to stop designating or enforcing "free speech zones." The case against the two arrested was dismissed, and the city issued an apology, vowing to better instruct its police officers on first amendment rights and their obligations in regard to them. [BTW, all of the above was contained in wire service and newspaper reports, not just blogger tales.]
But I like you have have been puzzled over the past few years about why civil libertarians [of all political affiliations] have not been up in arms, and loudly, about these absurd "free speech zones" set up and enforced where presidents are concerned [and I think candidates once nominated as well].
As you noted, it can happen here.

By flatlander100 (not verified) on 29 Jul 2004 #permalink

I would never try to defend free speech zones, I think they're a disgrace. However, I do feel some obligation to give the judges who did not grant the injunction against the use of them some degree of credit. His ruling was based largely on the fact that, with months to object to the free speech zones, the plaintiffs in the lawsuit waited until literally a few days before the convention. This put the judge in an awkward position- the executive branch asserted that the free speech zones were necessary for security. The plaintiff protesters asserted that less intrusive means could have been found to promote security, without stifling speech as much. However, the judges concluded that with only a few days left to the convention, it would be basically impossible to implement any such alternative methods.

Much of the opinion is devoted to discussing how important it is that suits for injunctions such as this one to be filed in advance of the crucial few days before the event, and discussing how the plaintiffs were aware of the free speech zones long before they filed suit.

I don't think that was an unreasonable opinion. If the free speech zones were taken down, there would have been only two or three days to make and implement a backup plan. That would probably be insufficient. And if the judges had tried to straddle the line, and merely required that the free speech zones be less offensively restrictive (removing the razor wire or something), that would have left us with a precedent saying "free speech zones are ok as long as they aren't too scary looking" or whatnot. It was probably best to throw this one out based on the timing and practicality of giving the injunction, and letting some other case further down the road make better law.