Secret Service Facing Lots of Lawsuits

To me this is a sign that they really don't understand the whole "freedom" thing; that to them it's just a meaningless buzzword to throw into a speech so they can increase their appeal.

On the other hand, I have seen it claimed that these venues have been rented (or reserved) by the RNC, converting them from First Amendment Forums to the equivalent of private property for the duration of the event. Then, as the private "owners", they can exclude whoever they want.

For an analogous situation, the St. Patrick's Day Parade, also held at a traditional First Amendment Forum (a public street), is allowed to exclude those it wants from its "private" affair because they have reserved the street for their event.

I'd be interesting in hearing whether you think the analogy holds, ought to hold, or, if not, why it fails.

But I also think it is a very dangerous trend, in that it seems to provide a major loophole around 1st Amendment freedoms.

Ahcuah-

I think that argument would get laughed out of court, and rightly so.

The lawsuits come about because the people being removed are legitimately present; they have procured an official invitation in some manner or other, so the private party arguments don't really work. It's as if Kerry had tried to oust everybody wearing Howard Dean buttons from the convention in '04.

As far as the private party argument goes otherwise, I have my doubts about it. Let's take the St Pats parade. Okay, clearly the organizers have the power to restrict parade entrants as they see fit, but should they have the power to control the crowd as well? I don't see it: They invite the public at large to attend, so really they have no right to complain when the public shows up, including protesters.

Political events are becoming different, because the President no longer makes any appearances at which the public is invited (he won't be inaugurated again). Thus, the only way a protester can get in is to either receive an invitation from an invitee, or get one through the mistake of the planners. This last is easy to engineer: Subscribe to National Review. I get invites to republican events all the time, just throught the magic of shared mailing lists and foolish assumptions.

It certainly is right that the Secret Service should be facing lawsuits. I just wish that suits could be filed directly against Bush himself for these attacks on the free speech rights of law-abiding people in public places.

This is only a good idea if we can extend it professional sports. We could then keep Duke fans out of UNC games and vice versa.

Don't you think it's dangerous to allow Democrats near the President?

Maybe we should rename them "facist fries," at least when served at the White House.

Attempting to burst Bubble Boy's bubble will not be allowed!

Ed,

I'd like to hear a bit more about why it would get laughed out of court. If I rent a pavilion at a local park for my family reunion, does that mean that anybody can just come in under the shelter with us if they want? Just how much property right does one gain from temporarily renting city property?

Here in Columbus, OH, is the Veteran's Memorial Coliseum, owned by the city. When some group rents it out, do they have to let just anybody in? (Note that this is one of the places that Bush has talked.) What if it is a convention of physicists? Do they have to let chemists in?

If you can find it, take a look at State v. Hood, No. 01AP-90, Ohio 10th Appellate Court, Sept. 27, 2001. This is a case of a guy arrested at the Columbus Jazz and Rib fest for not leaving when the coordinator of the event asked him to. [The event was held on a blocked-off portion of the city on the riverfront.] The municipal court judge dismissed the complaint because there was nothing indicating that the coordinator was an owner or agent for the City. This was held to be error by the appeals court, because there is nothing like summary judgment for criminal cases; that should only have come up after the prosecution presented its case, and then a motion for acquittal would have decided it.

However, it is not clear what would have happened if Hood had been told by a true agent of the City to leave. Just how much control over the city grounds that they have ought the renter have? What if it interferes with the event they are trying to hold?

And to kerhsam:

Just because one has an invitation to something does not mean that the invitation cannot be withdrawn by the owner at any time (particularly a free event). Also, regarding the parade, the crowds are not in the "rented" space. The issue I am addressing is people being expelled from the rented space; in the case of the parade, the street.

Ahcuah: Thanks for the comment, and in general you are correct: The owner (including renters) of a given piece of property have the right to determine who may be on that property. However, there are three additional points in play here:

1) There often is a quid pro quo for addending political events. This may be as blatent as buying the ticket outright, or it may be along the lines of a "suggested" donation to the party or candidate. This creates some sense of ownership in the attendance. Consider the analogous case of the protester who dirsupts a shareholders convention because he belongs to a co-op that owns one share of the stack.

2. Most of the lawsuits are not about whether the "protester" (where often a t-shirt or button is the only sense of protest) can stay, but whether they should have been arrested. Several people were arested at campaign events in '04 without being given the opportunity to leave voluntarily. This is a different case from your hypothetical.

3. The First Amendment provides the right to "[P]eaceably assemble" and for the "[R]edress of grievances." If the closest one can come to the government is a "Free Speech Zone" four miles away, it is hard to exercise these rights. Up to the time of the Civil War, it was common for Presidents to find time to meet with ordinary people, both at the White House and while travelling. I realize this is not practical today, but surely the reaction has gone way too far, to the extent that the President has no way of knowing what the average joe thinks, nor how such people live. Remember George I and his delight at discovering the grocery scanner?

Also, please keep in mind that neither Ed nor I have attempted a formal legal analysis of the problem. I don't have the time this week, and in any case, it would be easier to look up one of the cases and review the pleadings. Peace.

Ahcuah-

I think kehrsam has touched on some of the reasons already. There are several more. First, many of those events take place on public property, not private property, in what are already considered public forums. For instance, the Kalamazoo situation was on a public university campus. Beyond that, being on private property does not negate the designation of an event as a public forum for purposes of first amendment analysis. A political rally is going to be automatically considered a limited public forum, whether on private property or not. The courts are going to apply the highest degree of scrutiny on any governmental action that restricts the right to protest, and particularly when it comes to events on public property where the individuals arrested did nothing but wear a t-shirt or a button, and where those people had invitations to the event.

I partially agree with Ahcuah, but I don't think the RNC, for example, is renting out anything more than the venue. If they want to kick people they dislike a mile away, then they need to rent all of the streets from the city. And of course, they have no right to be arresting people on the spot.

OK, I wasn't clear that I was only discussing the cases where folks were told to leave the event itself often for as little as having the wrong bumper sticker, not the "free speech zones" cases. I cannot think of any excuse for those.

Ed, I'm not so sure about the level of scrutiny that would apply. If I want to hold a political rally on public property and I just show up and start talking, there is nothing they can do because of the 1st Am. (unless it is a place requiring a permit, which they have to grant absent very limited circumstances). But that is not what the Bush folks are claiming. They are claiming that they have rented that locale for a private party. I'm aware of the line of court cases that when the gov't runs a theater they cannot have viewpoint discrimination, and I'm aware of the line of cases that tenants cannot discriminate based on race, creed, etc.. But I am not aware of any where it is claimed that the government has rented the space out to a private party but the private party is still then required to admit anybody, even on 1st Amendment grounds. I think this is the loophole they will try to squeeze through.

I suspect it will be claimed that the fact that it was a political rally on public property is irrelevant, because they will be claiming that it was just a private party being held for the faithful. I still don't think you have fully thought over my point about what rights do you have, as a renter of a piece of public property, to control that property during the period you are renting it? Hurley showed that, even in a 1st Amendment context, one has a fair bit of control. (Hurley v. Irish-American Gay, Lesbian And Bisexual Group Of Boston, 515 U.S. 557 (U.S. 06/19/1995))

Let me also point you to Diener v. Reed, No. 03-1405 (3d Cir. 10/10/2003) (unpublished):

In Sistrunk, the Sixth Circuit followed the Hurley ruling, holding that where attendees of a political rally held by permit on a traditional public forum were prohibited from exhibiting messages contrary to the aims of the sponsors of the event, no violation of complainants' First Amendment rights occurred.

and to Sistrunk v. City of Strongsville, 99 F.3d 194 (6th Cir. 1996), in which the court, in upholding the dismissal of a suit said:

To require that the organizers include buttons and signs for Bill Clinton in the demonstration would alter the message the organizers sent to the media and other observers, even if the holders of signs and wearers of buttons did not otherwise interfere with the pro-Bush rally. Just as the organizers of the parade could not be compelled to include in their message the discordant message of GLIB, the committee that organized the rally for George Bush could not be compelled to include in its message an expression of confidence in Clinton.

This case involved activities at a Bush pere rally.

So, I guess it wasn't laughed out of court, but to the contrary, it worked.

Just to mix it up a bit more, I seem to recall there being a distinction between the president appearing at a Republican-party sponsored event [which presumes a greater ability on the part of the RNC to exclude] and the president appearing in his capacity as POTUS [which presumes a greater right of protester presence.] I know the two kinds of appearances are distinct [or are supposed to be] for billing purposes: RNC pays for the former [transportation, venue, etc] , taxpayers pay for the latter.

Remember George I and his delight at discovering the grocery scanner?

Aw c'mon, give the guy a break. Much as I dislike even the more intelligent original Bush, the scanner story is at the least overblown.