Author: Timothy Zick


The First Amendment’s Trans-Border Dimension

My book, The Cosmopolitan First Amendment, will propose that we have not one, but three, First Amendments.  The intra-territorial First Amendment is the most familiar of these.  It encompasses expressive and religious activities that occur within the territorial borders of the U.S.  The territorial First Amendment’s domain encompasses expressive and religious activities that intersect with the nation’s territorial borders.  Finally, the extra-territorial First Amendment operates beyond our shores.     

My project focuses on the latter two — territorial and extra-territorial — First Amendments.  This is the First Amendment’s trans-border dimension.  In this post, I want to highlight some of the activities and issues that are implicated in a study of this dimension. 

Within the trans-border dimension, U.S. citizens cross international borders for purposes of information-gathering, protest, or missionary work; publish communications and information while in foreign lands; communicate and associate with aliens, including foreign leaders, who are located abroad; and seek access to materials and information distributed abroad (including national propaganda).  U.S. officials seek to regulate these and other trans-border activities, engage in extensive communications of their own in foreign lands and forums, and fund sectarian projects abroad.  As well, as they long have, state and local governments continue to play some role in foreign affairs and foreign relations forums and dialogues.     

Aliens are also present and active in the First Amendment’s trans-border dimension.  They seek entry to the United States for purposes of academic, artistic, and other forms of exchange;  may wish to contribute resources to and participate in American political campaigns; are subject to U.S. spending conditions while communicating abroad; attempt to have foreign libel and other judgments enforced in U.S. courts; and distribute information across international borders that could be harmful to American interests at home and abroad.  Moreover, foreign regimes (courts and other government institutions) are pressing to have their own laws applied to domestic speech and other activities by U.S. citizens.  Multi-jurisdictional speech conflicts have become more frequent as speech has migrated to the Web. 

There are a number of unanswered or, at least to my mind, inadequately resolved First Amendment issues in this dimension. Read More


New Faces of the First Amendment: The Philosopher, the Pastor, and the Publisher

My new book project focuses on the First Amendment’s trans-border dimension.  I’ll explain in more precise terms what this dimension includes in a subsequent post.  Briefly, I will be examining and hope to clarify the relationship or intersection between First Amedment liberties and territorial borders. 

To be sure, in years to come domestic or intra-territorial First Amendment issues will continue to be prominently debated and litigated.  But owing to globalization, digitization, and other twenty-first century phenomena, we will be forced to pay greater attention to trans-border First Amendment concerns.  One way to demonstrate the change in focus is to think about some of the contemporary figures or personalities whose expressive activities implicate the First Amendment’s trans-border dimension. Three contemporary First Amendment figures – a Swiss philosopher, a Florida pastor, and an Australian Internet publisher –symbolize and demonstrate some of the emerging complexities of trans-border expressionRead More


The Summer of Discontent: Creative Repertoires of Public Protest

Thanks to Danielle and the full-timers here at Concurring Opinions for inviting me for another visit. As Danielle’s introduction indicated, my recent publications have focused primarily on freedom of speech. I want to use part of my guest stint to discuss some of the subjects of my second book, tenatively entitled The Cosmopolitan First Amendment. But I thought I would start with a post related to the subject of my first book, Speech Out of Doors.

Across the globe, it has been an active and tumultuous summer of protests. Public protests in Tunisia, Syria, and Belarus have been most publicized. In Belarus, citizens demonstrated their creativity in the face of official crackdowns, first by engaging in clapping protests and then, when those were met with repressive measures (including imprisonment), synchronized cellphone ringing or buzzing.  The New York Times reported on the diversity of worldwide public demonstrations during the crackdown in Belarus:

Russia has the “blue buckets,” activists who affix plastic sand toys to their cars (or their heads) in a protest against the traffic privileges accorded to government officials, whose cars are equipped with flashing blue lights. In Azerbaijan, where protesters are hustled away so quickly that even gathering is nearly impossible, small flash mobs have appeared out of nowhere to perform sword fights or folk dances.

The more permissive political atmosphere of Ukraine has spawned Femen, a group of young women who address such nonsexy issues as pension reform by baring their breasts in public. A woman was arrested in April for walking up to a World War II memorial in Kiev, Ukraine’s capital, and frying eggs and sausages over the eternal flame.

These and other reports prompted me to think about the most creative forms of public contention. The man pictured above is Ahn Sang-gyu, a/k/a The Bee Man. Ahn, a bee farmer, covered himself with 187,000 bees to protest Japan’s territorial claim to the Korean-occupied Liancourt Rocks. The 187,000 bees apparently represent the 187,000 square meter dimensions of these islets. As it turns out (and this was news to me), South Koreans are among the most creative when it comes to demonstrating public discontent with official policies. No mere marchers or chanters are they. For example, as this photo array shows (warning: some graphic images), South Koreans have been known to drop trou in the street, eat the flags of rival nations, dismember pigs, chop off their own fingers, and behead dummies.  But the South Koreans have global competition in this regard. Read More


Pole Dancing Reprise/Reprieve

I’ve greatly enjoyed my return visit to Concurring Opinions. As I depart, I can report that the right to instruct others in the art of pole dancing, which was the subject of my first post, has recently been vindicated. As reported here, the officials who originally denied a part-time dance instructor an occupancy permit that would have allowed her to teach pole dancing classes in a suburban strip mall outside Pittsburgh have relented. Authorities were apparently concerned that the strip mall business might turn into a strip club, or a sex toys outlet, or some other type of bawdy concern. Satisfied that this will not be the case, the town officials agreed to grant the permit. The instructor looks forward to helping women “release their inner goddess[es].”


Election Apparel and the Fashion Police

In a previous post, I discussed some recent controversies regarding electioneering near or at polling places. The Commonwealth of Virginia is the latest state to impose restrictions on what voters may wear when they go to the polls in early November. According the the AP report:

The State Board of Elections yesterday voted to ban clothing and hats as well as buttons and other paraphernalia that directly advocate the election or defeat of a specific candidate or issue.

The American Civil Liberties Union argued that the ban violates the First Amendment’s right to free speech. The board, however, said it has to weigh that against the right to vote free of undue influence or the tension that candidate advocacy might create.

The controversy over election apparel reminds me of the problems that are constantly arising in public schools regarding t-shirts and other apparel students are permitted — or not permitted — to wear during school hours and on school grounds. But there administrators and courts are at least generally guided by principles like the Tinker “disruption” standard. By contrast, the states that have imposed apparel limitations appear to take the position that simply wearing a button may “unduly influence” voters and interfere with the franchise. Considering that those at the polls are adults, and further considering that there is nothing intrusive or disruptive about merely wearing one’s support on one’s sleeve, or head, or jacket, this strikes me as overbroad. I understand the concern that polling places may become sites of political unrest if voters are allowed to actively campaign or demonstrate there. But wearing a button or sticker? In a political climate as bare-knuckled and tumultuous as ours, putative concerns regarding “undue influence” and “tension” from voter apparel seem overblown (to say the least).


Activism and Terrorism

Dan points out below that the NSA is dealing with a scandal relating to its surveillance activities. The NSA is not alone. The Maryland State Police have confessed error in listing 53 activists as “terrorists” in state and federal police databases. The designation occurred following months of covert surveillance of the individuals and their anti-war and anti-death penalty groups. The officers involved face no internal sanctions or other discipline, although new “guidelines” for domestic surveillance are apparently in the works.

The explanation for the “mistake” is that officers were simply “filling in a database,” were working for a “technology challenged” agency, and did not really consider those listed to be “terrorists.” These rather weak excuses will be of little consequence to those placed in the database, whose groups were infiltrated and investigated by authorities as if they were planning terrorist activity. In one sense, we have reached a point at which the label “terrorist” is so overused and even abused (e.g., in the current presidential contest) as to lose its true meaning. On the other hand, the label itself can be quite damaging — especially when it is the state doing the labeling. Designating and treating a person or group as a “terrorist” can result in significant symbolic, expressive, and other harms.

Of a more general concern is the trend toward treating political activism in this country as a form of domestic terrorism. Like Dan in the case of the NSA, I am not at all surprised by the Maryland events. Authorities now routinely prepare for and police even peaceful and lawful acts by dissenting groups as possible terrorist threats. Protesters and activists are not enemies of the state. At this point, however, there have been enough “mistakes” like those in Maryland to strongly suggest that authorities take this view. Our country does have real enemies. Spending fourteen months chasing and surveilling political activists seems like a very poor allocation of resources.


The University Campus as “Useless Appendage”

In my fortchoming book on public expression, I devote a chapter to public university and college campuses — “places of higher learning.” Historically, these places have been critical venues in terms of public politics and contention. They are, as the Supreme Court has said, “peculiarly the marketplace of ideas.” The Court has said that places of higher learning are not “enclaves immune from the sweep of the First Amendment,” and has rejected the proposition that the First Amendment applies with less force on campus than elsewhere. Insofar as public dissent, protest, and other forms of campus speech are suppressed, such a place becomes, in Justice Douglas’s words, “a useless appendage to a society which has traditionally reflected the spirit of rebellion.”

Of course, some would argue that universities do not exist to encourage or facilitate a “spirit of rebellion.” They are, after all, institutions whose primary mission is pedagogical. And rebellion, as history shows, can lead to riots and other dangerous activities. Fair enough. But in truth, as I argue in the book, we are in no danger of encouraging a “spirit of rebellion” on college and university campuses. To the contrary, our college and university campuses have increasingly become very placid and listless “appendages” in terms of the politics and contention they facilitate or allow. The chapter on “places of higher learning” explores the various limitations on campus expression across the United States (expressive zoning, permit requirements, speaker fees, etc.), most of which have simply been imported from outside campus gates without regard to the unique nature of these places.

The most recent limits on campus speech have arisen as a result of the presidential campaign. For example, University of Illinois officials notified students and faculty that a state ethics law bars all state workers from participating in political activities on campus property. According to this report, the Illinois Attorney General clarified that the restrictions do not apply to students. But the governor’s office said the ethics restriction applies to students as well as other employees, apparently without regard to the type of “political activity” or whether it will disrupt classes or otherwise affect the school’s educational mission. According to the report:

The Illinois situation is part of a “disturbing trend” likely to increase as the election nears, said Will Creeley of the Foundation for Individual Rights in Education. The Philadelphia-based group tracks academic freedom and free-speech complaints on U.S. campuses. It recently sent a letter of protest after the University of Oklahoma sent an e-mail to students, faculty and staff directing them not to use university e-mail to endorse or oppose a candidate. The Oklahoma school also barred the use of e-mail to forward political humor and commentary. The group has received complaints about bans on campaign activities at Iowa Western Community College and Fresno Pacific University in California, Creeley said.

In response to the administrators’ email, Illinois faculty and students held a political rally. But as I argue in the book, only a systematic rethinking of the First Amendment status of places of higher learning will save them from becoming “useless appendages.”


The Sanctity of Polling Places

This election season, like others, will involve a variety of contests relating to political and other activity at or near polling places. Already officials in Kentucky, Pennsylvania, and Nebraska have encountered (or in some instances engendered) some confusion regarding whether voters may wear campaign paraphernalia to the polls. Various exit pollers, campaigners, and petitioners have also filed lawsuits alleging that restrictions on activity near polling places violate the First Amendment. Although much of the focus leading up to election day has been on registering voters, we should also be aware that polling places themselves are hotly contested democratic venues. Voting is not the only action at the polls.

Of course, activists and lawyers are acutely aware that confusion regarding and limitations upon the exercise of the franchise can substantially interfere with the fundamental right to vote. Indeed, particularly in close elections, allegations of voter interference, fraud, and disfranchisement are now rather routine. But these same concerns have contributed to the transformation of many polling places into politics- and speech-free zones. The substantial limits on political and press activity within these zones raise serious First Amendment concerns. There are, of course, sound reasons (i.e., ensuring access and providing for the orderly administration of elections) for imposing some limits on political campaigning near polling places. Indeed, the Supreme Court, in Burson v. Freeman (1992), upheld Tennessee’s ban on political activity within 100 feet of polling places under a strict scrutiny standard. But as Justice Stevens observed in dissent:

Campaign free zones are noteworthy for their broad, antiseptic sweep. The Tennessee zone encompasses at least 30,000 square feet around each polling place; in some States, such as Kentucky and Wisconsin, the radius of the restricted zone is 500 feet–silencing an area of over 750,000 square feet. Even under the most sanguine scenario of participatory democracy, it is difficult to imagine voter turnout so complete as to require the clearing of hundreds of thousands of square feet simply to ensure that the path to the polling place door remains open and that the curtain that protects the secrecy of the ballot box remains closed.

We must be careful, as Justice Stevens said, not to “confuse sanctity with silence.” Despite the First Amendment concerns associated with polling place limits, many states have imposed bans similar to Tennessee’s. Many have also sought to restrict press activity such as exit polling near polling venues. The media have generally been successful in challenging these restrictions. Officials seem to have over-reacted to the perceived dangers of this form of information-gathering. Although exit polling has a somewhat checkered history, including in the 2000 presidential election, there is no evidence that it generally interferes with the franchise or disrupts elections. A district judge found in one case that of the 5,090 complaints registered by Florida voters in the 2006 congressional elections, not a single one related to exit polling.

So as we go to the polls in a few weeks, let us hope that the various limits on campaigning and other “political” activity near polling places will not be used to deny anyone access to the ballot. We should also hope that petitioners and exit pollsters will have reasonable access to the voting public.


The Crash and a Third Bloomberg Term

So Mayor Michael Bloomberg wants a third term. Unfortunately, New York voters have twice passed term limits laws. No matter. Hizzoner apparently plans to end-run the voters and have the City Council, many of whose members are also term-limited, to revise the term limits law. While detractors say the mayor should honor the term limits (he once called an effort to overturn them “disgusting”), supporters of a third Bloomberg term suggest that in this time of “crisis” the city needs his steady hand.

I have no particular bone to pick with Mayor Bloomberg. As far as I could tell from my stint living in Brooklyn, he did a fine job. He’s a popular mayor — today. But the hypocritical and self-serving nature of this decision is extraordinary. Apparently, Bloomberg believed that term limits were necessary — until he was subject to them. This was the story in April: “The mayor is absolutely not seeking a third term,” said Bloomberg spokesman Stu Loeser. Asked if the mayor would promise to leave at the end of 2009, Loeser replied, “Yes.” Then came the crash. So limits on incumbency must give way to the great financial crisis? Yes, say supporters of a third term. Only Bloomberg — and of course the rest of the term-limited officials who would benefit from the revision — can save us now.

Is it any wonder the public is cynical about its political leaders? It’s as if they think the world could not get along without them. Worse, fear has now become a common — and for many an accepted — rationale for continued governance. Just as a terrorist attack requires that we “stay the course,” so too does a financial crisis. Here’s a populist notion: Politicians should get over themselves. Instead, they are acting more and more like aging athletes. When the lights start to fade, they seek an “I’m back!” moment. True, some such comebacks have been successful. But others have failed miserably. The team generally seems to get along fine without the departed star. As for term limits themselves, there may well be sound public policy arguments on both sides of the issue. But at this point they are the law in the city. At the very least, officeholders should respect their constituents enough to allow them to decide whether twice deciding to impose incumbency restrictions was a mistake. It’s no answer that they could vote Bloomberg out — entrenched incumbency and its advantages are among the principal reasons term limits exist.


The State of the First Amendment

The First Amendment Center has released the results of its annual nationwide survey regarding First Amendment liberties. As usual, respondents expressed general support for free speech and other First Amendment liberties. But when asked about specific situations, the answers suggest a willingness to accept a substantial measure of governmental control.

As usual, a number of survey questions related to broadcast and other media. There was substantial support for content restrictions and even some government directives with regard to media. For example, 66% of respondents said the government should require television broadcasters to allot equal time to liberal and conservative broadcasts (62% would extend that requirement to newspapers); 39% of respondents would extend the indecency regulations applied to broadcast television to cable and satellite media; and 38% would permit government to require broadcasters to report a specified amount of “positive news” in return for licenses to operate. These numbers are relatively consistent over the past several years. One number that did creep up a bit–the number of respondents who agree with the statement “the falsifying or making up of stories in the American news media is a widespread problem” (66%).

Various other content regulations also garnered substantial support. For example, nearly a third of respondents disagreed that musicians should be allowed to sing songs with lyrics that others might find offensive; 42% responded that speakers should not be allowed to say things in public that might offend religious groups; 54% said the same thing with respect to racial groups. And 50% thought schools ought to be able to discipline students for posting (while off campus) entries on social networking sites that may be “disruptive” to school classes. These numbers, too, seem relatively consistent across time.

These, however, were not the most interesting (or disturbing) results of the survey.

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