As someone whose livelihood depends on the First Amendment, it can be irksome how this essential enshrinement of the four freedoms of assembly, the press, speech and exercise of religion is misinterpreted. Some of it can be a simple, yet gross misunderstanding where people like Hank Williams Jr. wrap themselves in the First Amendment to deflect criticism of their words by private people or companies.
Amid the nationwide series of Occupy protests and earlier efforts to disrupt BART mass transit in San Francisco, I’ve seen some well intentioned, if not fully informed assertions of the First Amendment, especially with regards to protestors claiming where and when they can protest. While there are (and should be) broad rights to protest and address government grievances in public spaces, people don’t have carte blanche. While the First Amendment is broadly written in the Bill of Rights, more than 70 years of Supreme Court rulings have defined the “public forum doctrine” where government agencies can set reasonable, content-neutral restrictions on access.
I first became interested in the current situation when the classic Occupy Wall Street group faced possible eviction from Zuccotti Park, ostensibly for cleaning. It was an interesting situation, especially with private ownership of what appears to be a traditional public forum (they’re apparently required to allow public access around the clock). It reminded me a bit of when the Church of Jesus Christ of Latter-Day Saints acquired part of Main Street in Salt Lake City and turned it into a plaza (with significant speech restrictions that didn’t apply to LDS representatives).
Ultimately, the “public forum doctrine” under the First Amendment generally allows agencies to set reasonable time, place and manner restrictions on access to traditional public forums, provided that these rules are content-neutral and narrowly serve a significant state interest. [“Perry Education Association v. Perry Local Educators’ Association,” 460 U.S. 37 (1983)]. The Supreme Court also held that a government may enforce a narrowly crafted content-based exclusion that’s vital to serve a compelling state interest (which is stricter than a significant interest).
Despite protestors’ claims, the public forum doctrine still applies. On Thursday, U.S. District Judge Morrison C. England Jr. ruled that Sacramento’s 3o-year-old overnight curfew in parks doesn’t violate protestor’s rights. According to the Sacramento Bee —
England said the Sacramento ordinance “as drafted and applied” does not discriminate against the views of park occupiers, and it governs in a reasonable way the “time, place and manner” of demonstrations in all city parks.
As layman who has studied the First Amendment, I believe the public forum doctrine is sound and should be honored when it is applied fairly and equally. Looking at the Zuccotti Park situation and others, my questions would be: Are the current restrictions reasonable to an average person, do they serve a significant state interest and are they being applied equally to all?
Generally, I’m in favor of people maximizing their free speech rights (like in California shopping centers), but protestors don’t seem to have much ground to stand on if the law is being applied fairly.
