Monday, August 02, 2004

I protest (part 2)

I've read the First Circuit's opinion upholding the DNC's "DZ" (demonstration zone), an opinion Eugene Volokh thinks is reasonable under the circumstances. (You can get a .pdf of the opinion from his site.) Reasonable it may be, but it's a shame. It should have gone the other way--if not at the appellate level where the court has less room for second-guessing, then surely in the lower federal district court.

In upholding the city of Boston's decision to create this holding pen, remote from the convention site, "located for the most part underneath unused rail tracks," "surrounded by two rows of jersey barriers topped with eight-foot chain link fencing," with "coiled razor wire along the edges of the rail tracks," both courts endorsed fear over hope.

This is a case involving political speech, which is at the top of the top when it comes to First Amendment protection, as the appellate court acknowledged. Yet a key case that the opinion relies on involved a lesser kind of expression. In Ward v. Rock Against Racism (1989), the Supreme Court upheld the city of New York's right to assume control of the volume of the music that a group played in a Central Park bandshell (over the dissent of Marshall, Brennan, and Stevens). Although the plaintiff-appellants had political speakers and a political message, they did not argue that they were engaged in political speech. They based their argument on the fact that music itself is a protected form of expression. An argument based on political speech could well have gone the other way.

There's another difference. In Rock Against Racism, it was the prior behavior of that very group that prompted the city to enact its regulation. The court could quite validly speculate that the complaints that the group's loud music had legitimately evoked in the past would happen again. In the Boston case, the argument is based on "recent past experience with large demonstrations" in other times and places. That "there is no evidence in the record that the City had information indicating that demonstrators intended to use such tactics at the Convention" did not matter. Nor was the argument that the police would be perfectly able to arrest violent protesters persuasive.

With startling implications for the future of tradtional, human, in-your-face protesting, the court held that there were plenty of alternative means by which the protesters could get their message out:

[W]e think that the appellant's argument greatly underestimates the nature of modern communications. At a high-profile event, such as the Convention, messages expressed beyond the first-hand sight and sound of the delegates nonetheless have a propensity to reach the delegates through television, radio, the press, the internet, and other outlets.

None of these, not even the internet with all its advantages, delivers the same kind of message as a peaceful mass demonstration.

To his credit, one judge in concurring was blunt about saying that Sept. 11 had changed everything:

The DNC will be the first 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. . . . Inevitably, the events of 9/11 and the constant reminders in the popular media of security alerts color perceptions of the risks around us, including the perceptions of judges. The risks of violence and the dire consequences of that violence seem more probable and more substantial than they were before 9/11. When judges are asked to assess these risks in the First Amendment balance, we must candidly acknowledge that they may weigh more than they once did.

Since these opinions were issued by the district court, which called the outcome "irretrievably sad," and the circuit court, which affirmed the result and the sadness, we are hearing of real terrorist threats against real targets. Our government should do everything possible to protect us against credible threats of terrorist attack. Serious threats deserve a serious response.

But in this small arena in Boston, in this skirmish involving long-chrished rights of American citizens--dare it be said?--the terrorists won.

UPDATE: What I mean.

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