by Don Mitchell
In advance of the massive global protests last February 15 against the Bush
Administration’s plans for its illegal, “pre-emptive” war against
Iraq, peace activists in New York applied for a permit to stage a march down
1st Avenue in front of the UN Building.
The permit was denied, on “security” grounds, even though in a hearing
before a judge (who upheld the ban) the New York City Police admitted that it
had no reason to expect violence and had no evidence suggesting there was a
heightened risk of terrorism associated with the event.
Lauding the decision to ban the march (but to allow protesters to occupy “protest
pens” in the middle of 1st several blocks north of the UN), the New York
Times nonetheless opined that the City’s actions “should not become
the standard for the future.” “It is crucial,” the Times continued,
“that this not become the norm.”
But it already was the norm – in New York and around the country. The protest
permit system has become a highly efficient means to minimize, and even silence,
dissent – not just in New York. In New York City, the Bloomburg administration
did not approve a single permit for a protest parade – for anything –
prior to its denial of the February 15 permit. In Washington, the permit system
is routinely used to route protests away from the World Bank and IMF buildings,
from the offices of corporations like Coca-Cola and The Gap, and well away from
the White House.
Most protest permits are granted on a first-come, first served basis. So in
the summer of 2000, the City of Philadelphia granted the Republican National
Committee (RNC) a blanket permit for the use of all public spaces (streets,
sidewalks, parks, etc.) around the city’s convention center, near the hotels
that Republican Convention delegates were staying at, and all along the route
between the hotels and the convention site. Protest groups were allowed to apply
to hold a protest in a particular place. The application was then passed on
to the RNC, which then had to decide if it was “really” using the
protest site or not. If it was, then the protesters were out of luck. In essence
the RNC was given the right to silence any group it did not like – or if
not to silence it, at least to push it so far from the convention that it would
not be heard.
Of course, our right to use of public space for protest has always been tenuous
– despite what we might think the First Amendment guarantees. It was not
until 1939 that the Supreme Court finally declared that the use of streets and
sidewalks for political assembly and speech was constitutionally protected.
And when it made this declaration it immediately qualified it. Public speech
and assembly, the Court declared, has always to be “exercised in subordination
to the general comfort and convenience, and in consonance with peace and good
order….”
In the years since, the Supreme and lower courts have found “general comfort
and convenience … peace and good order” to encompass everything from
minimizing the opportunity for violence to not unduly delaying shoppers doing
their Saturday rounds; from keeping contentious groups apart to keeping the
traffic moving; and from keeping antiabortion activists away from clinic entrances
to assuring the grass in a park is not trampled. As long as rules and regulations
are “content neutral” (they don’t, apparently, punish viewpoint)
and as long as they do not “burden more speech than is necessary to achieve
a narrowly tailored end” (they don’t accomplish a goal that could
be more easily accomplished through some other means), courts will sanction
them. The protest permit system is now the primary means of assuring order by
regulating free speech.
Indeed, courts have strongly encouraged the development of permit processes,
even though back in that 1939 decision the Supreme Court found that just such
a permit system was a form of “prior restrain” on political speech.
Prior restrain – government censorship – was anathema to the designers
of the Bill of Rights and in 1931 the Supreme Court developed a doctrine that
says that “there is a heavy presumption against” the Constitutional
validity of prior restraint. This means that governments have to prove the validity
of prior restraint in each instance; its validity can never be assumed. Constitutional
scholars agree that requiring a permit, or license to engage in protest is (in
the words of one scholar) a “classic type of prior restraint.” And
permit systems, by definition, assume the validity of prior restraint: instead
of governments always having to prove prior restraint is essential (as prior
restraint doctrine requires), protesters are burdened with proving unconstitutionality.
This is not cheap; and it is not easy (the judge in New York said she did not
want to “second guess” the city’s police officers when they claimed
security was at stake).
The Court’s negotiation of this contradiction between its promotion of
permit systems and its prior restraint doctrine is torturous. In 1941 it ruled
that while public political speech could not be licensed, parades could. That
is, the content of speech could not be regulated, but the form of expression
could. And twelve years after that, it ruled that stationary protests could
also be regulated, since unlike parades, they tended to “monopolize”
space making it unavailable for other viewpoints!
If the right to public, free speech was finally declared in 1939, then by 1953,
the Court had backtracked so far that what had once (briefly) been a right of
the people to political protest became the right of the state to permit speech
(or not). This is the world we have lived in ever since: the norm the New York
Times thought might be being born in the City’s decision to block the antiwar
march, was already 50 years old.
This made the nation-wide protests on the night the war began all the more important.
For in city after city, including in Syracuse, protesters made conscious decisions
not to abide by permit rules and regulations. They knew that to be heard, the
law – and more than a half century of Court decisions – would have
to be broken, for it is not just the corporate media, not just the condescending
pronouncements of the current White House, and not just local, sometimes brutish
police forces or vigilante groups that seek to silence dissent in America, but
the very structure of the law that has grown up around the exercise of First
Amendment rights. Reasonable as it sometimes seems, that law is stacked against
dissent. True power, the writers of First Amendment regulations know, includes
the power to control where and when and how dissent takes place. But the protests
that accompanied the start of the current invasion and occupation of Iraq showed
that this power is never absolute.
This suggests a few lessons for the antiwar movement. First, among all the other
things protesters need to be savvy about, one is continuing to use the permit
system strategically, obeying it when that is best for getting the message across,
defying it when necessary. Protesters need to be aware that the police use the
permit system as a pretext to make arrests. Common charges against protesters
these days include parading without a permit. Equally, police often seek to
prevent or break-up protests if they think they are somehow violating the specific
terms of a protest. The possibility for such pretextual policing must be understood,
and strategies developed in light of it. Second, ploys like the Philadelphia/RNC
blanket permit (which, evidence suggests, is being copied across the country)
need to be exposed, publicized, and resisted, in courts and on the streets (as
the Kensington Welfare Rights Union successfully did when it staged a mass march
to the convention center anyway). Third, pressure needs to be applied to lawmakers
and the judiciary to begin undoing a system that – whatever its values
in preserving “order” and promoting “convenience” –
in fact undermines critical means for dissent in America and thus undermines
democracy.
The fight for free speech is a fight always worth engaging.
This article is based on research conducted with Dr. Lynn Staeheli of the University
of Colorado.
Don, the founder and director of the People’s Geography Project, is a professor
and the Chair of the Geography Department at Syracuse University. He is the
author, most recently, of The Right to the City: Social Justice and the Fight
for Public Space (Guilford 2003) and is at work on a book called The Bill of
Rights: A Radical Geography. Don will be speaking about issues related to this
in the Westcott Neighbors Lecture Series at the Westcott Community Center at
7:30 pm on Thursday September 18.