Demonstrators beware: you won't be seen or heard

Original Reporting | By Mike Alberti |

Both Charlotte and Tampa will set space aside as a so-called “free speech zone,” where demonstrators are allowed to congregate. While the exact location of the free speech zones have not been determined in either city, such zones have been used in several past political conventions, such as the Democratic Conventions of 2000, in Los Angeles, and 2004, in Boston, to keep demonstrators many blocks away from the convention — out of sight and sound of the gathering. In some cases these zones have also, controversially, been fenced in.

“It’s important that we plan for the worst.” — James Shimberg, Tampa City Attorney

In Chicago, because of the size of the security perimeter designated by the Secret Service, parades will not be allowed to pass within sight and sound of the convention. In Charlotte and Tampa, the parade routes have not yet been announced, though officials acknowledge that many streets will not be available for marches. In both cities, groups attempting to plan marches have objected to the newly adopted permitting process for being unnecessarily vague, and accused the cities of stalling decisions on whether to grant their permit requests.


Legal context

According to Timothy Zick, a law professor at William & Mary Law School and the author of Speech Out of Doors: Preserving First Amendment Liberties in Public Places, while each individual tactic has been used before, the combination of spatial tactics being employed by Chicago, Charlotte, and Tampa represent a relatively new way of policing. “There is a temporary, radical change in the legal geography of the city,” he said. “We’ve seen that on a smaller scale for at least the last fifty years, but it has become much more prevalent in the last decade.” (See box titled “Security vs. Speech” below.)

While most civil liberties advocates acknowledge that there are some legitimate security concerns at large events, many argue that the balance between security and free speech has tipped too far toward security.

A particular concern has been the placing of a demonstrator zone out of “sight and sound” of the demonstrators’ intended audience, and several lawsuits have been brought on those grounds. Federal courts have ruled both ways. In a case concerning the 2000 Democratic Convention in Los Angeles, for example, the federal district court ruled that the city’s “secured zone,” which would have kept demonstrators 260 yards away from the delegates, was much too large to pass constitutional muster. In contrast, the First Circuit Court of Appeals found that Boston’s imposition of a restricted zone for demonstrations in connection with the 2004 Democratic Convention did not violate the constitution, though the zone, which was heavily fenced in, “imposed a substantial burden on free expression.”

In general, several legal experts agree, most courts will not find restrictions that place demonstrators out of sight and sound of their intended audience unconstitutional.


Providing security, yet welcoming dissent

There are alternatives, however. Several critics of the current model suggested examples of affirmative methods that officials could use to welcome demonstrators, while still maintaining public safety.

Spatial tactics cause a “temporary, radical change in the legal geography of the city,” said Timothy Zick of William & Mary Law School. The use of those tactics, he said, “has become much more prevalent in the last decade.”

John Whitehead, the founder of the Rutherford Institute, a civil liberties law firm and advocacy organization, said that police departments and federal law enforcement agencies already have a variety of techniques at their disposal to identity threats beforehand. “The vast majority of people who come out to protest at these events are just good folks,” he said. “If there are some [specific] people who are planning to be violent, then it’s certainly the job of the police to try to identify them beforehand,” instead of treating the vast majority of peaceful protesters as though they might intend violence.

Kris Hermes, a legal worker with the National Lawyers’ Guild in Chicago, said that having a security perimeter around the site of a large event was appropriate, but suggested that “the Secret Service should adopt a policy that its perimeters will allow people to get close enough to the site that they can be seen and heard.”

Ed Yohnka, the director of communications and public policy for the ACLU of Illinois, described a variation of that theme, saying that the group had tried to secure some areas within the Secret Service perimeter of the NATO Summit where a limited number of demonstrators might be allowed, provided they were put through the same screening process that will be used for members of the press.

“I think that would be a real sign of opening things up,” he said. “That would show people that security is what they’re really worried about, not just some inconvenience or discomfort.”

Security vs. speech

In each city where spatial restrictions have been imposed, the “significant public interest” used to justify them — a necessary element for time, place, and manner restrictions on free speech and assembly to be considered constitutional — has been the need to maintain the public safety and security. According to Zick and other legal experts, in the post-9/11 period, courts have become extremely deferential to security concerns when considering the limitations on First Amendment activity.

“These types of restrictions are much more harmful to free speech than the courts have recognized,” Zick said. “They are very rarely held up to a meaningful level of scrutiny by the courts, which tend to think about space as a secondary concern, when it is clearly crucial in many cases.”

Don Mitchell, a professor of geography at Syracuse University and the author of The Right to the City: Social Justice and the Fight for Public Space, said that it has now become expected for cities to use spatial tactics.

“Cities have found that this is an incredibly effective way of silencing people,” he said. “They have become quite good at zoning free speech in ways that allows them to control it.”

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