Author: Timothy Zick


War and the Politics of Free Speech

A few days ago, the United States Senate handily (75-25) passed a “sense of the Senate” resolution condemning a political advertisement placed in the New York Times by the anti-war group Many conservatives, most prominently presidential candidate Rudy Giuliani, complained both about the substance of the ad and the process by which it came to be in the Times — the allegedly “discounted” price and the timing (the ad ran the day of General Petraeus’s congressional testimony). The ad referred to General Patraeus as “General Betray Us” and accused him of “cooking the books” for the White House to justify the much-debated surge in Iraq. After reviewing the General’s credentials, the Senate resolution calls on the Senate to “strongly condemn all personal attacks” against General Petraeus and other members of the armed services and to “specifically repudiate the unwarranted personal attack on General Petraeus by the liberal activist group” (A propsoal sponsored by Senator Barbara Boxer (D-California), which failed (51-46), more broadly called on the Senate “to strongly condemn all attacks on the honor, integrity and patriotism” of those in the armed services.)

As Sandy Levinson has observed, the ad was extraordinarily “dumb politics.” It allowed supporters of the war in Iraq to once again shift the debate from events on the ground in that country to partisan domestic politics in this one. As I noted in an earlier post, there are substantial dangers attending the cozy relationship between many prominent Democrats and anti-war advocacy groups like In the face of what was indeed a sharp attack on General Petraeus, Republicans once again rallied behind the “support the troops” mantra. President Bush himself took the unusual step of condemning the ad, suggesting that members of the Democratic Party were “more afraid of irritating [] than they are of irriating the United States military.” Under the circumstances, many Democrats apparently felt they had no choice but to publicly denounce the ad and vote for the resolution.

It is a pity Senators of both parties did not reject and renounce this politicization of free speech. Although the Senate’s finger-wagging resolution carries no penalties (and thus cannot be challenged as a violation of the First Amendment), it is shamefully antithetical to the spirit and values of the First Amendment. In New York Times v. Sullivan, the Supreme Court emphasized our “profound national commitment to the principle that debate on public issues should be uninhibted, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In times of war, when lives are literally at stake, one can reasonably expect less inhibition on the part of speakers. Of course, senators possess individual expressive rights. But it is inappropriate for the United States Senate to institutionally condemn expression regarding matters of public concern, or to single out a political advocacy group for special rebuke. In our marketplace of ideas, the people ought to decide for themselves whether the criticism of General Petraeus constituted an unwarranted “personal attack” or a warranted criticism. The Senate’s condemnation distorts the marketplace and threatens to chill others from presenting sharp attacks against favored subjects. Although it focuses on and its advertisement, the Senate resolution seems to suggest that military leaders and members of the armed services are now beyond “sharp” and “caustic” criticism. Is the president, as Commander-in-Chief of the armed forces, entitled to the same protection from “personal attacks”? The business of the Senate is to debate and enact laws for the benefit of the country. Surely that distinguished body has more pressing business than the politicization of expression.


Student Tasered At Kerry Forum

taser2.jpg.bmpThis video, which has received quite a bit of attention, shows a journalism student at the University of Florida being restrained and ultimately tasered by campus police officers at an event at which Senator John Kerry was speaking. The video appears to present a nearly complete version of the events in question (although there were apparently additional cameras, which may reveal additional evidence). As related here, the video’s sequence of events begins with the student asking Senator Kerry (out of frame) whether he was a member of Skull and Bones at Yale University. Prior to that, the student had asked why Senator Kerry had conceded the 2004 presidential election and had not supported impeaching President Bush. As he finishes the Skull and Bones question, the microphone is apparently cut off. The events that follow speak for themselves.

UPDATE: Here is a more complete video of the events.

Is this student a heckler attempting to “take down” a speaker, as discussed in my previous post? Or does the exchange with Senator Kerry represent an appropriate, if aggressive, questioning of a public official? In either case, did the authorities react appropriately to the student’s words and actions?

[The student was released from jail on his own recognizance. He has been charged with resisting an officer and disturbing the peace. The university has asked state investigators to review the incident.]


“Facebook in the Flesh”

The Web has often and, I think, justifiably been touted as a democratizing and empowering communications medium. But as with any communications phenomenon of this magnitude, there are bound to be some negative effects. I am not talking here about the threats to children or the ubiquity of online pornography. In more basic social and expressive terms, the manner in which people associate and communicate “online” may be producing certain deleterious effects with regard to such activities “offline.” Although there are likely others, I want to discuss two such potential negative effects.

The first possible negative effect relates to basic interpersonal skills and social networking. As some educators (the author included) are doubtless aware, students have a tendency to resort to email rather than make appointments for face-to-face meetings with instructors. Disembodied or “virtual” communication can of course be quite beneficial in terms of things like convenience and efficiency. But for students, emailing, texting, and participating in social networking sites like MySpace and Facebook are not primarily related to convenience and efficiency; they are now the principal means of connecting to and communicating with others. What effect are these modes of online communication having on real space encounters and interactions? Consider a recent orientation seminar offered at New York University, entitled “Facebook in the Flesh.” As reported in the September 17 edition of The New Yorker, the seminar was apparently designed to teach students how to socialize and build social networks in person — social processes that a seminar brochure recognized could be very “intimidating” to students. At one point, participants were paired off and given instructions on how to do such elementary things as ask questions and discover commonalities and connections. Thus, one possible negative effect from online modes of expression is the difficulty, and in some cases even inability, to effectively interact with others located in the same physical space. This negative effect may have serious social and economic, as well as expressive, ramifications. (According to a recent survey, time spent at work has not decreased despite the availability of mobile technologies.)

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The People Out of Doors — In Trees

As reported here, for several months now activists have been protesting the planned construction of a new athletic facility at the University of California-Berkeley. Some of the protesters have been camping out in and near a grove of trees slated for destruction. The protest tactics are hardly notable, particularly at Berkeley. What is notable is the University’s latest move in this ongoing dispute. Under cover of darkness, university officials had the grove surrounded by a 10-foot-high fence. The erection of the fence was necessary, said university officials, to “protect” the protesters from angry football fans.

The Berkeley episode is one indication that campus spaces, once facilitative platforms for social movements, have become microcosms of the spaces outside their gates. Like other state actors, public college and university officials have increasingly turned to “free speech zones” and other spatial tactics to control outdoor expressive activity. In some instances, adverse publicity has caused officials to rethink these tactics, or at least re-zone campus space to allow for additional open forums. But expressive zoning, detailed permitting requirements, and other spatial controls are prevalent on many campuses today.

The argument that the fence facilitates free speech by “protecting” the speakers, advanced by the university’s vice chancellor for administration, is typical. But putting speakers inside fences is an affront to free expression. The structure itself communicates that it is the public that needs to be protected from the speakers. Unless and until the protest is held to be unlawful (an argument the university is now pressing in court), public officials have a duty to protect these protesters from any hostile audience. That means providing some form of security in the event those currently voicing hostile opinions on the Web actually show up, not diluting and demeaning the protesters’ message by caging their display.

As the Berkeley response also demonstrates, the use of spatial tactics like these can seriously backfire on administrators. The erection of the fence has apparently engendered solidarity among groups and community activists that do not typically join cause. It may not be, as one activist described it, a “Guantanamo Berkeley,” but the Berkeley fence is an oddly ironic structure in the birthplace of the Free Speech Movement.


Constitutional Displacement

I have posted my most recent piece, entitled “Constitutional Displacement,” on SSRN. In recent First Amendment scholarship, I have focused on the intersection of speech and place or spatiality. This project, which is more expansive, considers the many respects in which governmental control of territory affects constitutional liberties. The draft can be downloaded here, and comments are of course welcome. Here is the abstract:

This Article examines the largely overlooked intersection between territory and constitutional liberty. Territoriality — the attempt to affect, influence, or control people, phenomena, and relationships by delimiting and asserting control over a geographic area — affects constitutional liberty in profound ways. The effects have been apparent in certain infamous historical episodes, including the hyper-territoriality of racial segregation, the internment of Japanese-Americans during World War II, and isolation of the sick and mentally ill. Today, governments are resorting to territorial restrictions in an increasing number of circumstances, including the detention of enemy combatants at Guantanamo Bay, the expulsion of illegal immigrants from local communities, the banishment of convicted sex offenders from vast geographic areas, the exclusion of homeless persons from public spaces, and the proposed isolation and quarantine of victims of pandemics and bio-terrorist attacks. These measures have produced what the Article refers to as Geographies of Justice, Membership, Punishment, Purification, and Contagion. Within these geographies persons and groups are subject to constitutional displacement – the territorial restriction or denial of fundamental liberties. The displacements examined in the Article substantially restrict or deny basic liberties including access to justice, migration, movement, communal and political membership, and the ability to be present in places of one’s own choosing. The Article demonstrates that the Constitution provides remarkably little protection from certain forms of displacement. Analyzing the Constitution itself as a spatial framework, one that relies upon place, geography, and territory for various purposes, the Article shows that displacement arises from extra-territorial and intra-territorial “spatial gaps” in text and structure. The Article proposes that these spatial gaps be narrowed or closed.


The Contemporary Protest Movement

war_protest_102809.jpgIn a book I have tentatively entitled, The People Out of Doors: The First Amendment, The Expressive Topography, and the Preservation of Public Liberties, I examine the many limitations on contemporary political protest and other First Amendment activity in public places. One of the things I thought much about while I was writing the book was the continued relevance and salience of the traditional public protest in an era of hyper-technology. In this weekend’s New York Times Magazine, Michael Crowley touches on this theme in a piece about the methods and effectiveness of the anti-war protest movement. Crowley’s principal focus is on modern-day methods of protest and, in particular, protest organizing. As he reports, protest repertoires like conference calls, lobbying, and mass emails are replacing the public demonstrations, door-to-door canvassing, and street theatre used in earlier social and protest movements. Crowley wonders whether technological advances in communications and organization will actually create a more effective protest movement than existed, say, in the Vietnam era. He seems skeptical — and with good reason. Thus far, despite organizational improvements, fundraising successes, and regular access to legislators including House and Senate leaders, the anti-war movement has achieved little tangible progress in halting the war or bringing home the troops.

Crowley’s piece highlights two substantial errors that contemporary protest and other social movements seem vulnerable to making. The fact that, as Crowley states, “[t]he Internet, not the street, not the campus, is the fundamental component of today’s anti-war movement” portends a premature abandonment of the streets and other public places. The Internet is a necessary tool for organizing, raising money, and conveying messages. Indeed, no contemporary protest movement can succeed unless it harnesses the benefits of bandwith. The first error, however, is to assume that the Web can replace tangible places of protest, and that democracy-by-technology can replace on-the-ground grass-roots activity. The “virtual march on Washington,” staged online by one of the principal anti-war movement organizers, could not produce the solidarity or impact of a real march on the Capitol. Nor can online polls and petitions replace more embodied forms of protest and protest organizing. As I argue in the book, the people cannot effectively self-govern solely by sitting in front of computer monitors and typing on keyboards. Although they did not ultimately produce legal reform, last summer’s immigration protests showed how a tangible public presence can attract attention and at least start a national dialogue. By contrast, who watched or even noticed the “virtual marchers”? Anti-war protest organizers have not yet entirely abandoned traditional protest repertoires. But they are moving in that direction. The people must continue to assemble “out of doors,” both in the physical/tangible sense and in the sense that they occupy spaces outside mainstream political institutions.

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Deterring Protesters

seal-presidential-color.gifMany have complained that President Bush shields himself from opposing viewpoints and that the Administration, in a more general sense, does not tolerate dissent. Thus far, much of the evidence supporting this claim has either been anecdotal or, some might argue, the product of partisan griping.

A Texas couple recently settled (for $80,000) a lawsuit against the Bush Administration over being tossed from a Fourth of July speech by President Bush. The plaintiffs were ejected for wearing “anti-Bush” t-shirts. As a result of the lawsuit, some evidence came to light that demonstrates the Administration’s aversion to dissent is a matter of official policy. The Office of Presidential Advance produced a “Presidential Advance Manual” (dated October, 2002) that instructs presidential advance staffers in the art of “deterring potential protesters” from attending President Bush’s public appearances. Pre-event measures to “minimize demonstrators” include limiting attendance to those with tickets and screening attendees for hidden protest signs (no “homemade” signs are allowed). If, despite these measures, protesters attend an event the manual instructs staff to ask local police “to designate a protest area where demonstrators can be placed, preferably not in the view of the event site or motorcade route.” If for some reason that is not a workable solution to the problem of potential protesters, the manual suggests the strategic use of “rally squads” to shout them down. Ultimately, if all else fails, the manual instructs that protesters should be thrown out of the event (although staffers are instructed not to fall into the “trap” of physical confrontation, which “most often” is desired by protesters).

Presidential appearances obviously raise substantial safety concerns. There is even, at least on private property, an argument in favor of allowing a campaign or administration to exclude protesters and dissenters (although this obviously distorts the marketplace of ideas and inhibits self-government). The Presidential Advance Manual does not generally address safety concerns. Nor does it distinguish between events on private and public properties. The White House has refused so far to discuss the manual – on the ground that it is at issue in two other lawsuits filed by similarly displaced protesters. The document speaks for itself. It is, simply put, a playbook for deterring public protest.


Public Protest, Militarization, and Critical Democratic Moments

free-speech-pen-CO_small_jpg.jpgThanks to Dan and the others here at CO for having me as a guest this month. The 2008 presidential contest is under way, which means we can start looking forward to the national party conventions. I want to take a look back at the policing of public expression at the 2004 Republican National Convention in New York City. Familiar on-the-ground tactics such as protest zones, barriers, mass arrests, and permit denials were effectively used to control dissent and channel public protest. As some readers may recall, many RNC protesters were effectively relegated to a remote site on the West Side Highway, some distance from the convention. This was not as troubling as the cage built for protesters at the 2004 Democratic National Convention (pictured), but it was hardly facilitative of public protest and expression. If history is any guide, we can expect similar tactics to be used in 2008.

I want to focus, however, on a different aspect of public policing at the RNC. As reported in the New York Times, the New York City Police Department engaged in widespread surveillance of activists and protest groups prior to and during the RNC. Some of the details of that surveillance were first made public this summer, as a result of discovery in a lawsuit filed by protesters and others arrested at the RNC. In connection with my research for a book about public expression, I recently reviewed hundreds of pages of the almost-daily “RNC Intelligence Updates” and “Situation Reports” compiled and distributed by law enforcement. Among many other events, officers and undercover detectives reported the following potential threats to public safety:

• A planned “Bands Against Bush” music show. NYPD officials observed that “the mixing of music and political rhetoric indicates sophisticated organizing skills with a specific agenda.” The intelligence item notes that police departments in several cities where similar events were scheduled had been notified.

• Plans by a group known as “Axis of Eve” to use partial nudity as a “protest tactic.” Without apparent irony, the intelligence report states: “The event is said to include the participation of roughly 100 women in thong type underwear and will be advertised heavily amongst the media for maximum exposure.”

• The possible presence at the RNC of graffiti artists riding “magic bikes” – customized bicycles equipped with spray paint dispensers and videotaping equipment.

• Performances by “The Living Theater” entourage, whose purpose according to one intelligence report “is to raise community awareness on political or social issues,” and the “Surveillance Camera Players,” who engage in street theatre protests concerning the use of public surveillance cameras.

• The (frequently) reported whereabouts and apparent intentions of Aron “Pieman” Kay, whose signature form of activism apparently consists of throwing pies at people.

• Plans by a New York City-based group to use art murals and street theater to spread a “peace message.”

• An Iowa group’s plans to hold a film festival as a prelude to the RNC.

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