The return of seditious libel

UCLA Law Review

Volumn 55, Issue 5, 2008, Pages 1239-1319

  Krotoszynski Jr , Ronald J ^a   Carpenter, Clint A ^b  

^a UNIVERSITY OF ALABAMA SCHOOL OF LAW   (United States)

^b United States District Court for the Western District of Virginia ^*

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EID: 49249101316     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (418)

1. Coal. to Protest the Democratic Nat'l Convention v. City of Boston, 327 F. Supp. 2d 61, 61-64 (D. Mass. 2004), aff'd sub nom. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8 (1st Cir. 2004).
2. Id. at 67.
3. Id. at 76. The court continued, "[i]t is a brutish and potentially unsafe place for citizens who wish to exercise their First Amendment rights." Id. The court also compared the appearance of the DZ to "that of an internment camp," described the situation as "irretrievably sad," and stated that "the DZ conveys the symbolic sense of a holding pen where potentially dangerous persons are separated from others. Indeed, one cannot conceive of what other design elements could be put into a space to create more of a symbolic affront to the role of free expression." Id. at 74-75, 77.
4. Id. at 76.
5. Bl(a)ck Tea Soc'y, 378 F.3d at 15. The First Circuit did not dispute the district court's factual assessment of the shocking character of the DZ, but nevertheless affirmed the district court's legal conclusion that the DZ was constitutional. Id.; see also infra Part I.C.1 (discussing Bl(a)ck Tea Society).
6. Bl(a)ck Tea Soc'y, 378 F.3d at 13.
7. Id. at 13-14 (noting that "[t]he appellant points out, correctly, that there is no evidence in the record that the City had information indicating that [these] demonstrators intended to use [unlawful] tactics at the Convention").
8. Cf. Williams v. Wallace, 240 F. Supp. 100, 105-06, 108-09 (M.D. Ala. 1965) (issuing an injunction to facilitate the famous Selma-to-Montgomery civil rights protest march, even though a march of this scale and scope would create serious security risks and disruptions for persons seeking to use the U.S. highway between Selma and Montgomery for its more usual purpose of intercity travel). For a discussion and defense of how Judge Frank Johnson, Jr. deployed creative legal reasoning in Williams in aid of the right to petition for a redress of grievances, see Ronald J. Krotoszynski, Jr., Celebrating Selma: The Importance of Context in Public Forum Analysis, 104 YALE L.J. 1411, 1420-32 (1995).
9. Cf. Schneider v. State, 308 U.S. 147, 162 (1939) (holding that the government may not ban leafleting, even though some persons who receive leaflets choose to litter the streets with them, because permitting the government to punish the speaker for the bad behavior of others would essentially permit a hostile mob to silence core political speech with the government's active assistance).
10. Menotti v. City of Seattle, 409 F.3d 1113, 1131-32 (9th Cir. 2005) ("The City also had an interest in seeing that the [World Trade Organization (WTO)] delegates had the opportunity to conduct their business at the chosen venue for the conference; a city that failed to achieve this interest would not soon have the chance to host another important international meeting."); see infra note 135.
11. Cf. OFFICE OF PRESIDENTIAL ADVANCE, PRESIDENTIAL ADVANCE MANUAL 34 (2002) (instructing those responsible for preparing a site for a presidential appearance to have the U.S. Secret Service "ask the local police department to designate a protest area where demonstrators can be placed, preferably not in view of the event site or motorcade route"), available at http://www.aclu.org/ pdfs/freespeech/presidential_advance_manual.pdf. Another tactic for "dealing with demonstrators" advocated in the recently released (and heavily redacted) Presidential Advance Manual is the formation of "rally squads," small groups of presidential supporters who "spread favorable messages using large hand held signs, placards, or perhaps a long sheet banner." Id. The rally squads "should be instructed always to look for demonstrators. The rally squad's task is to use their signs and banners as shields between the demonstrators and the main press phtform. If the demonstrators are yelling, rally squads can begin and lead supportive chants to drown out the protestors (USA!, USA!, USA!)." Id. (emphasis added). Elsewhere, the Manual instructs that "[i]f it is determined that the media will not see or hear [the demonstrators] and that they pose no potential disruption to the event, they can be ignored." Id. at 35.
12. See generally Mary Cheh, Demonstrations, Security Zones, and First Amendment Protection of Special Places, 8 D.C.L. REV. 53 (2004); Thomas P. Crocker, Displacing Dissent: The Role of "Place" in First Amendment Jurisprudence, 75 FORDHAM L. REV. 2587 (2007);
13. Joseph Herrold, Capturing the Dialogue: Free Speech Zones and the "Cage" of First Amendment Rights, 54 DRAKE L. REV. 949 (2005);
14. James J. Knicely & John W. Whitehead, The Caging of Free Speech in America, 14 TEMP. POL. & CIV. RTS. L. REV. 455 (2004);
15. Aaron Perrine, The First Amendment Versus the World Trade Organization: Emergency Powers and the Battle in Seattle, 76 WASH. L. REV. 635 (2001);
16. Timothy Zick, Space, Place, and Speech: The Expressive Topography, 74 GEO. WASH. L. REV. 439 (2006) [hereinafter Zick, Space, Place, and Speech];
17. Timothy Zick, Speech and Spatial Tactics, 84 TEX. L. REV. 581 (2006) [hereinafter Zick, Speech and Spatial Tactics];
18. see also Michael J. Hampson, Note, Protesting the President: Free Speech Zones and the First Amendment, 58 RUTGERS L. REV. 245 (2005);
19. Susan Rachel Nanes, Comment, "The Constitutional Infringement Zone": Protest Pens and Demonstration Zones at the 2004 National Political Conventions, 66 LA. L. REV. 189, 215-18 (2005);
20. Nick Suplina, Note, Crowd Control: The Troubling Mix of First Amendment Law, Political Demonstrations, and Terrorism, 73 GEO. WASH. L. REV. 395, 402 (2005);
21. Nicole C. Winnett, Note, Don't Fence Us In: First Amendment Right to Freedom of Assembly and Speech, 3 First Amendment L. Rev. 465 (2004).
22. Coal, to Protest the Democratic Nat'l Convention v. City of Boston, 327 F. Supp. 61, 67 (D. Mass. 2004), aff'd sub nom. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8 (1st Cir. 2004).
23. In Ward v. Rock Against Racism, 491 U.S. 781 (1989), the Supreme Court held that time, place, and manner restrictions on speech are consistent with the Free Speech and Free Assembly Clauses of the First Amendment if the regulations "are justified without reference to the content of the regulated speech," are "narrowly tailored to serve a significant governmental interest," and "leave open ample alternative channels for communication of the information." Id. at 791. Security of government officials and others attending mass political meetings and conventions clearly satisfies the "significant government interest" aspect of the test's second prong. And, in practice, the content-neutrality prong merely requires that the speech restriction banish all potential speakers (even though those supporting the Democratic Party are not likely to protest their own convention). The hardest part of the test for the government to meet should be the "ample alternative channels of communication prong," though in reality even this is but a speed bump: "[A]lthough the opportunity to interact directly with the body of delegates by, say, moving among them and distributing literature, would doubtless have facilitated the demonstrators' ability to reach their intended audience, there is no constitutional requirement that demonstrators be granted that sort of particularized access." Bl(a)ck Tea Soc'y, 378 F.3d at 14.
24. For a psychological explanation of this and similar judicial phenomena, see generally Christina E. Wells, Fear and Loathing in Constitutional Decision-Making, 2005 WIS. L. REV. 115 (explaining how the psychology of threat perception and risk assessment affects judicial decisionmaking).
25. See also Vincent Blasi, The Pathological Perspective and the First Amendment, 85 COLUM. L. REV. 449 (1985) (arguing that federal courts should be most vigilant in protecting speech rights in times of national emergency because it is at such times that the political process is likely to overreact to perceived threats and to adopt measures that have the effect of silencing public discourse, and it is at such times that full and robust public debate is most essential to wise policymaking).
26. See U.S. CONST. amend. I ("Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.").
27. See, e.g., ARNOLD H. LOWEY, THE FIRST AMENDMENT: CASES AND MATERIALS, at vii-xvii, 1291-92 (1999) (omitting coverage of the Petition Clause from the table of contents and the index, and omitting McDonald v. Smith, 472 U.S. 479 (1985), the Supreme Court's most recent general Petition Clause decision, from both the table of contents, the index, and the table of cases);
28. KATHLEEN M. SULLIVAN & GERALD GUNTHER, FIRST AMENDMENT LAW, at v-v, xvi, I-2 (3d ed. 2007) (same);
29. EUGENE VOLOKH, THE FIRST AMENDMENT AND RELATED STATUTES: PROBLEMS, CASES AND POLICY ARGUMENTS, at xiii-xxxii, xxxvi 1036 (2d ed. 2005) (same).
30. But see, e.g., STEVEN H. SHIFFRIN & JESSE H. CHOPER, THE FIRST AMENDMENT: CASES - COMMENTS - QUESTIONS, at vii-xiii, 54, 699-701 (4th ed. 2006) (citing McDonald in the context of a discussion of group libel);
31. GEOFFREY R. STONE ET AL., THE FIRST AMENDMENT, at ix-xix, 149-50, 647 (2d ed. 2003) (citing McDonald in the context of a discussion of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), but not otherwise mentioning the Petition Clause). Note, however, that a single citation to McDonald arguably proves rather than refutes the point that the Petition Clause receives short shrift in contemporary First Amendment casebooks.
32. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES, at xvi-xvii, 748-961, 1091 (1997) (omitting any reference to the Petition Clause or the cases arising under it);
33. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, at xxii-xxiv, 866 n.31, 1770, 1773 (2d ed. 1988) (omitting any general coverage of the Petition Clause, and providing only a single reference to McDonald in a footnote, in the section addressing New York Times Co. v. Sullivan, which is remarkably paltry coverage in the most comprehensive, and most cited treatise in the field).
34. See infra text accompanying notes 267-282.
35. Sedition Act of 1798, ch. 74, 1 Stat. 596 (expired 1801).
36. See infra text accompanying notes 222-245.
37. See infra text accompanying notes 359-364.
38. See Thomas F. Carroll, Freedom of Speech and of the Press in the Federalist Period: The Sedition Act, 18 MICH. L. REV. 615, 636-37 (1920);
39. Edward S. Corwin, Freedom of Speech and Press Under the First Amendment: A Resumé, 30 YALE L.J. 48, 48-49, 54-55 (1920);
40. see also Judith Schenck Koffler & Bennett L. Gershman, The New Seditious Libel, 69 CORNELL L. REV. 816, 822-23 (1984) (discussing the theoretical underpinnings of seditious libel, which relate to concerns that "political protest and criticism of officials undermined the basic safety of the government [and] . . . . threatened the legitimacy of power").
41. See Wells, supra note 15, at 201-02.
42. See, e.g., McDonald v. Smith, 472 U.S. 479, 482 (1985) (holding that the Petition Clause does not create any greater right of public comment that contains false factual assertions than do the Free Speech or Free Press Clauses because the Petition Clause is "cut from the same cloth" as these parallel rights).
43. See Adam Nagourney, Appearing Now on a TV Near You: Surely a Presidential Debate, N.Y. TIMES, Aug. 11, 2007, at A9 (reporting Senator Clinton's plea that "[a] lot of those lobbyists, whether you like it or not, represent real Americans," and noting that the senator's "remark had her own supporters grimacing and girding for its possible use in rivals' campaign advertisements").
44. See Ruth Marcus, Delay Exits, Stage (Hard) Right, WASH. POST, June 12, 2006, at A21 (reporting the resignation of House Majority Leader Tom Delay because of ties to disgraced lobbyist Jack Abramoff who used outright bribes to secure legislative favors from various members of Congress).
45. See RONALD J. KROTOSZYNSKI, JR., THE FIRST AMENDMENT IN CROSS-C ULTURAL PERSPECTIVE: A COMPARATIVE LEGAL ANALYSIS OF THE FREEDOM OF SPEECH 12-18, 23-25 (2006) (discussing competing theories of the Free Speech Clause and the notion that core political speech should enjoy the broadest protection);
46. see also STEVEN H. SHIFFRIN, DISSENT, INJUSTICE, AND THE MEANINGS OF AMERICA 24-31, 57-67 (1999) (arguing that core speech includes political dissent by members of minority groups). The notion of core political speech relates to the idea that the First Amendment's principal purpose is to facilitate the process of democratic deliberation. See KROTOSZYNSKI, supra, at 15-18;
47. see also ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF- GOVERNMENT (1948);
48. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUP. CT. REV. 245.
49. See SHIFFRIN, supra note 28, at 24-31, 57-67.
50. 395 U.S. 444 (1969).
51. See id. at 447-49 (holding that the advocacy of violent overthrow of the government is protected unless the government establishes, by clear and convincing evidence, a clear and present danger of "imminent lawless action"); see also Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988) ("[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment . . . . [Although] such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, . . . the First Amendment prohibits such a result in the area of public debate about public figures."); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) ("In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed . . . . In these quintessential public forums, the government may not prohibit all communicative activity."); FCC v. Pacifica Found., 438 U.S. 726, 746 (1978) ("If there were any reason to believe that the [Federal Communications] Commission's characterization of the [speech] as offensive could be traced to its political content . . . . First Amendment protection might be required."); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) ("[We] consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."); De Jonge v. Oregon, 299 U.S. 353, 365 (1937) ("[I]mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion . . . . Therein lies the security of the Republic, the very foundation of constitutional government."); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) ("Those who won our independence . . . . believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; . . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government.").
52. See, e.g., Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219-21 (10th Cir. 2007); Menotti v. City of Seattle, 409 F.3d 1311, 1123-25 (9th Cir. 2005).
53. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling, 17 HARV. C.R.-C.L. L. REV. 133, 177-78 (1982);
54. Charles R. Lawrence, III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 452-57;
55. Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2356-58 (1989).
56. Or, perhaps, since New York Times Co. v. Sullivan in 1964. See N.Y. Times Co. v. Sullivan, 376 U.S. at 270 (recognizing "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open"); see also Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 191, 204-06, 209-10.
57. 341 U.S. 494 (1951).
58. Id. at 498-501; id. at 533-34, 543-45 (Frankfurter, J., concurring); see also VICTOR S. NAVASKY, NAMING NAMES 27-37 (1980) (discussing Dennis, 341 U.S. 494).
59. See William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV. 91, 97-98, 102-08, 123-27 (1984); see also infra text accompanying notes 201-252.
60. The bad tendencies test under Dennis reflected and incorporated Judge Learned Hand's formulation of free speech protection, which permitted the government to regulate speech based on a sliding scale that incorporated the nature of the harm to be prevented as well as the probability of the harm coming to pass. See Dennis v. United States, 183 F.2d 201, 212-13 (2d Cir. 1950), aff'd, 341 U.S. 494 (1951). For some minor harms, such as jaywalking, the probability of the speech causing the harm would have to be very high, perhaps even reaching the point of certainty, before the government could act to suppress or to punish the speech. For more serious harms, like violent overthrow of the government, the probability of the harm coming to pass could be much lower, and the government would still have a legitimate claim to regulate or to ban the speech. Thus, the gravity of the potential harm, as much if not more than the risk of its occurrence, prefigured the ability of the government to regulate or suppress the speech. Brandenburg rejected this approach and required a high probability of the risk coming to fruition as a precondition to government regulation or suppression, regardless of the gravity of the risk. Jonathan S. Masur, Probability Thresholds, 92 IOWA L. REV. 1293, 1310-12 (2007);
61. see Richard A. Posner, The Learned Hand Biography and the Question of Judicial Greatness, 104 YALE L.J. 511, 518 (1994) ("Elegant and eloquent as it is, Hand's opinion in Dennis was a period piece and it was not the best period for freedom of thought and expression. Brandenburg . . . certainly repudiated Dennis.").
62. But see Martin H. Redish, Unlawful Advocacy and Free Speech Theory: Rethinking the Lessons of the McCarthy Era, 73 U. CIN. L. REV. 9, 62-65 (2004) (arguing that Brandenburg and Dennis are not entirely unreconcilable and that the Brandenburg Court plainly did not wish to overrule Dennis).
63. As Professor Cass Sunstein has explained, "[w]hen government regulates on the basis of viewpoint, it will frequently be acting for objectionable reasons." CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 169 (1993); accord. Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principal underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."); Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 57 (1983) (Brennan, J., dissenting) ("The First Amendment's prohibition against government discrimination among viewpoints on particular issues falling within the realm of protected speech has been noted extensively in the opinions of this Court.").
64. See, e.g., Perry, 460 U.S. at 59-61 (Brennan, J., dissenting) ("There is another line of cases, closely related to the prohibition against viewpoint discrimination, that have addressed the First Amendment principle of subject-matter or content-neutrality. Generally, the concept of content-neutrality prohibits the government from choosing the subjects that are appropriate for public discussion."); Geoffrey R. Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. CHI. L. REV. 81 (1978).
65. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam); Hess v. Indiana, 414 U.S. 105 (1973) (per curiam); Gooding v. Wilson, 405 U.S. 518 (1972).
66. See generally Hustler Magazine v. Falwell, 485 U.S. 46, 51-53 (1988) (holding protected, on free speech grounds, an intentionally malicious parody of a public figure because constitutionally protected criticism of public officials and public figures "inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to vehement, caustic, and sometimes unpleasantly sharp attacks").
67. Rosenfeld v. New Jersey, 408 U.S. 901, 911 (1972) (Rehnquist, J., dissenting).
68. Id. at 902; see also id. at 905 (Powell, J., dissenting) (describing the exact words used by the speaker at the school board meeting, to wit, "the adjective m[other] f[ucking] on four occasions, to describe the teachers, the school board, the town and his own country").
69. See Justin Hooks, Overnight Celebrity Reaps Benefits, SUN HERALD, March 16, 2007, at A2 (recounting Dr. Marble's famous encounter with Vice President Cheney outside Marble's wrecked Gulfport home on September 8, 2005); see also The Guy That Said "Go Fuck Yourself, Mr. Cheney!!", YouTube, http://www.youtube.com/watch?v= wwNiVZWuQpE (last visited Mar. 5, 2008) (providing a video of the entire encounter, in which Dr. Marble yells, "Go fuck yourself, Mr. Cheney! Go fuck yourself!" and explains, after the encounter, that "that's what he tells everybody in Congress, so I figured if he can do it, so can I").
70. See generally Julian Borger, Cheney Vents F-Fury at Senator, THE GUARDIAN (London), June 26, 2004, at 14 (reporting and quoting Vice President Cheney's suggestion to Senator Patrick Leahy (D-VT), offered on the floor of the U.S. Senate, that Leahy "go fuck [him]self").
71. See Cohen v. California, 403 U.S. 15, 15-19 (1971).
72. Id. at 22-26. For a discussion of Cohen, see Ronald J. Krotoszynski, Jr., Cohen v. California: "Inconsequential" Cases and Larger Principles, 74 TEX. L. REV. 1251 (1996).
73. 485 U.S. 46, 51-53 (1988).
74. See Beauharnais v. Illinois, 343 U.S. 250, 261-64 (1952); Dennis v. United States, 341 U.S. 494, 501-09 (1951).
75. See, e.g., American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), summarily aff'd, 475 U.S. 1001 (1986); Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).
76. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
77. See N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971); see also Hague v. Comm. for Indus. Reorganization, 307 U.S. 496, 515-18 (1939); Lovell v. City of Griffin, 303 U.S. 444, 451-53 (1938); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 712-15 (1931).
78. WILLIAM BLACKSTONE, 4 COMMENTARIES *150-52.
79. See Thomas I. Emerson, The Doctrine of Prior Restraint, 20 LAW & CONTEMP. PROBS. 648 (1955);
80. John Calvin Jeffries, Jr., Rethinking Prior Restraints, 92 YALE L.J. 409 (1984);
81. Martin H. Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory, 70 VA. L. REV. 53 (1984);
82. Christina E. Wells, Bringing Structure to the Law of Injunctions Against Expression, 51 CASE W. RES. L .REV. 1 (2000).
83. See, e.g., United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 132 (1981); Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 535-36 (1980). Time, place, and manner regulations advance "legitimate interests in regulating traffic, securing public order, and insuring that simultaneous [uses of public property for speech activity do] not prevent all speakers from being heard." Id. at 535-36. "Thus, the essence of the time, place, or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals." Id. at 536.
84. See infra text accompanying notes 81-87.
85. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269-71, 275-76 (1964); see also Kalven, supra note 34, at 204-10.
86. Hustler Magazine v. Falwell, 485 U.S. 46, 51-53 (1988).
87. Sullivan, 376 U.S. at 270.
88. The Supreme Court of Australia used precisely this reasoning to find an implied right of free speech in the Constitution of Australia. The Justices concluded that the Constitution created a democratic form of government and that such government was simply not possible without significant protection for the freedom of speech. See Austl. Capital Television Pty. Ltd. v. Commonwealth (1992) 108 A.L.R. 577 (Austl.) (finding an implied right of free speech as an incident of Australia's commitment to democratic self-government, and invalidating a ban on broadcasting political advertisements under this implied right). For a critical analysis of the case, see Gerald R. Rosenburg & John M. Williams, Do Not Go Gently Into That Good Night: The First Amendment in the High Court of Australia, 1997 SUP. CT. REV. 439.
89. OWEN M. FISS, THE IRONY OF FREE SPEECH (1996);
90. OWEN M. FISS, LIBERALISM DIVIDED: FREEDOM OF SPEECH AND THE MANY USES OF STATE POWER (1996).
91. See Owen M. Fiss, Silence on the Street Corner, 26 SUFFOLK U. L. REV. 1 (1992) [hereinafter Fiss, Silence];
92. see also Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1410-21 (1986) [hereinafter Fiss, Free Speech and Social Structure].
93. Wells, supra note 15, at 202-04.
94. See Blasi, supra note 15, at 466-76 (1985) (arguing that judges should define "the freedom of speech" narrowly, but should protect speech coming within that definition in near absolute terms during times of crisis or unrest in order to facilitate meaningful democratic discourse at times when such discourse is most crucial).
95. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 805-08 (1984) (aesthetics); Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring) (quiet enjoyment of a park); Cox v. New Hampshire, 312 U.S. 569, 573-76 (1941) (traffic flow); see also Consol. Edison Co. v. Pub. Serv. Comm'n, 447 U.S. 530, 535-36 (1980) (discussing in general terms possible permissible justifications for content-neutral time, place, and manner restrictions).
96. See, e.g., Cheh, supra note 12; Crocker, supra note 12; Zick, Space, Place, and Speech, supra note 12; Zick, Speech and Spatial Tactics, supra note 12.
97. See infra text accompanying notes 323-364.
98. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
99. See Fiss, Silence, supra note 62, at 3-18 (describing the evolution of the Supreme Court's test for time, place, and manner restrictions).
100. Hill v. Colorado, 530 U.S. 730, 765 (2000) (Kennedy, J., dissenting).
101. See Zick, Space, Place, and Speech, supra note 12, at 453, 458-59;
102. Zick, Speech and Spatial Tactics, supra note 12, at 634; see also Nanes, supra note 12, 215-18; Suplina, supra note 12, at 402.
103. See Ward, 491 U.S. at 797-800 (discussing the narrow tailoring requirement). In contrast, a court considering a content-based regulation must "assume[] that certain protected speech may be regulated, and then ask[] what is the least restrictive alternative that can be used to achieve that goal." Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).
104. Ward, 491 U.S. at 799-800 (citations omitted). In Hill v. Colorado, the Court articulated an even broader view of narrow tailoring, stating that "when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal." Hill, 530 U.S. at 726.
105. See Ward, 491 U.S. at 800 ("The Court of Appeals erred in failing to defer to the city's reasonable determination [of how] its interest . . . would be best served . . . ."); see also Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195-96 (1997) (discussing the "substantial deference" owed to Congress' judgments as to the existence of a harm and the best means of alleviating it).
106. Ward, 491 U.S. at 807 (Marshall, J., dissenting).
107. The requirement of ample alternative channels of communication is also subject to manipulation. See, e.g., infra Part I.C.1-I.C.2 (discussing cases in the federal circuit courts applying the time, place, and manner doctrine).
108. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)); Boos v. Barry, 485 U.S. 312, 321 (1988).
109. See, e.g., infra text accompanying 81-98 (discussing the Court's neutrality inquiries in Hill and Turner).
110. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986).
111. See Ward, 491 U.S. at 791.
112. Hill v. Colorado, 530 U.S. 703, 707 n.1 (2000) (quoting COLO. REV. STAT. § 18-9-122(3) (1999)).
113. Id. at 719-20. Without elaboration, the Court also made a head-scratch-inducing third argument that the statute was content neutral because it was not a regulation of speech at all, but "[r]ather, it [was] a regulation of the places where some speech may occur." Id. at 719. Though it would no doubt come as a surprise to the authors of the Court's previous decisions on time, place, and manner regulations, apparently such regulations are, by definition, content neutral.
114. Id.
115. Id. at 719-20.
116. See id. at 725-30.
117. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369-74 (1886); Hunter v. Underwood, 471 U.S. 222, 229-32 (1985).
118. See Griffin v. County Sch. Bd., 377 U.S. 218, 221-22 (1964) (invalidating a scheme to avoid desegregation of the county public schools by simply closing them); see also BOB SMITH, THEY CLOSED THEIR SCHOOLS: PRINCE EDWARD COUNTY, VIRGINIA, 1951-1964 (1965).
119. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994).
120. 47 U.S.C. §§ 534-535 (2000).
121. Turner, 512 U.S. at 633.
122. Id. at 630 (internal citations omitted).
123. Id. at 674-75 (O'Connor, J., concurring in part and dissenting in part).
124. Id. at 644-45.
125. Id. at 643 (emphasis added).
126. Id. at 677-78 (O'Connor, J., concurring in part and dissenting in part). Joining Justice O'Connor's opinion was the unusual combination of Justices Ginsburg, Scalia, and Thomas. Id. at 674.
127. Id. at 645 (citing United States v. Eichman, 496 U.S. 310, 315 (1990)).
128. See id. at 646-48.
129. See id.
130. See Hill v. Colorado, 530 U.S. 703, 742, 764 (2000); see also Ronald J. Krotoszynski, Jr., Dissent, Free Speech, and the Continuing Search for the "Central Meaning" of the First Amendment, 98 MICH. L. REV. 1613, 1667 & n.178 (2000). The Court's pro-abortion-rights Justices, however, are not alone in their willingness to subvert First Amendment values in favor of their views on abortion. In Rust v. Sullivan, 500 U.S. 173 (1991), for example, Justices Scalia and Kennedy, who both dissented vociferously in Hill, joined the majority in upholding a regulation prohibiting physicians from even mentioning the availability of abortion to women who participated in a government-sponsored family planning program. Id. at 176. The majority's credulity-stretching argument was, in essence, that "neither the physician nor the patient had any free speech interest in speech related to abortion in a government-sponsored family planning clinic." See KROTOSZYNSKI, supra note 28, at 200-09 (comparing Rust with Hill and arguing that "[f]ree speech principles were simply collateral damage in [cases] perceived as part of the overall battle over the scope and meaning of Roe v. Wade").
131. Hill, 530 U.S. at 742 (Scalia, J., dissenting).
132. See generally infra text accompanying notes 110-177.
133. See Suplina, supra note 12, at 395-96 (describing the free-speech zones established at presidential appearances and at the 2004 Democratic and Republican National Conventions); United States Secret Service, National Special Security Events, http://www.secretservice.gov/nsse.shtml (last visited July 31, 2007) (describing the underlying law and the process and significance of designating an event a "National Special Security Event").
134. See Andrew Blake, Atlanta's Steamy Heat Cools Protests: More Than 25 Groups Rally in Demonstration Area, BOSTON GLOBE, July 20, 1988, at 12 (describing the demonstration area established by Atlanta's mayor, termed a "free-speech cage" by one of the protestors).
135. See Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 11 (2004) (describing the enclosed free-speech zone at the 2004 DNC, which was located under elevated railroad tracks bordered by "coiled razor wire"). For a satirical take on this phenomenon, see Arrested Development: Whistler's Mother (Fox television broadcast Apr. 11, 2004), in which one of the main characters, Lindsay Bluth, attempts to protest the Iraq War outside a military base, but is foiled by the military's use of a free-speech cage. As a soldier directs Lindsay and her fellow protestors into the chain-link pen in the middle of nowhere, she asks, "Free-speech zone? This is where we're protesting? This isn't right. Where are the cameras?" Unmoved, the soldier replies drily, "They're in the free-press zone. And if you could save your comments until you're completely loaded into the cage." After closing the gate
136. See OFFICE OF PRESIDENTIAL ADVANCE, supra note 11, at 34-35 (describing White House procedures for keeping protestors away from the president and the press at presidential appearances); see also Hampson, supra note 12, at 257; Suplina, supra note 12, at 396.
137. Compare Rick Klein, Convention Plan Puts Protesters Blocks Away, BOSTON GLOBE, Feb. 20, 2004, at A1 (2004 DNC),
138. Mitchell Locin & John O'Brien, For Convention Protests, This Time It's the Pits, CHI. TRIB., Apr. 2, 1996, at 1 (1996 DNC),
139. and Nicholas Riccardi, Convention Planners Wary of a New Style of Protest, L.A. TIMES, June 23, 2000, at 1 (2000 DNC),
140. with Diane Cardwell, The Contest of Liberties and Security, N.Y. TIMES, July 26, 2004, at B1 (2004 RNC),
141. Thomas Ginsberg, Convention Pact Gives GOP Control of Center City Sites, PHILA. INQUIRER, Mar. 24, 2000, at A01 (2000 RNC),
142. and Tony Perry, Protestors Toe the Line for GOP Convention, L.A. TIMES, June 23, 1996, at 3 (1996 RNC).
143. See Nanes, supra note 12, at 209; Suplina, supra note 12, at 396-97; infra Part I.C.1-I.C.2 (discussing cases involving challenges to no-protest and free-speech zones).
144. See Hampson, supra note 12, at 253-59 (describing numerous instances of government suppression of political dissent since 9/11); Suplina, supra note 12, at 396 ("[W]hen the state raises powerful antiterrorism concerns within the weak First Amendment time, place, manner framework it will almost always prevail.").
145. See Blair v. City of Evansville, Ind., 361 F. Supp. 2d 846, 859 (S.D. Ind. 2005) ("Defendants' creation of a large no-protest zone, and the creation of a designated protest zone 500 feet or more away from Blair's targeted audience violated Blair's First Amendment Rights."); Stauber v. City of N.Y., No. 03 Civ. 9162 (RWS), 2004 WL 1593870, at *29 (S.D.N.Y. July 19, 2004) (finding that the city's use of free speech "pens" was not narrowly tailored due to the extreme limitations on entry to and exit from the pens); Serv. Employee Int'l Union v. City of L.A., 114 F. Supp. 2d 966, 975 (C.D. Cal. 2000) ("[T]he Court finds that the proposed 'secured zone'. . . is not narrowly tailored to serve that interest [in security] because it burdens more speech than is necessary. The Court further finds that defendants' proposed 'Demonstration Site' is not an adequate alternative for communication to the delegates and Democratic Party officials . . . .").
146. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 10 (1st Cir. 2004). The appalling character of the "DZ" was detailed in the Introduction to this Article. See supra text accompanying notes 1-4 (describing the district court's assessment of the DZ).
147. Coal. to Protest the Democratic Nat'l Convention v. City of Boston, 327 F. Supp. 2d 61, 76 (2004), aff'd sub nom. Bl(a)ck Tea Soc'y, 378 F.3d. 8.
148. Bl(a)ck Tea Soc'y, 378 F.3d at 10.
149. Id. at 12.
150. See Nanes, supra note 12, at 209 ("Although the Boston demonstration zone could theoretically have been filled by pro-Kerry demonstrators and the protest pens outside [the RNC] in New York City could have housed pro-Bush demonstrators, common sense argues this would not be the case.").
151. Bl(a)ck Tea Soc'y, 378 F.3d at 13. In addition, the district court's opinion makes clear that, at most, only half of the delegates would have been able to even see the DZ on their way into the convention. See Coal. to Protest, 327 F. Supp. 2d at 67-68 (describing, in relation to the DZ site, the configuration of the bus terminal where delegates would arrive and depart).
152. Bl(a)ck Tea Soc'y, 378 F.3d at 13-14.
153. Id. at 14.
154. Id.
155. Cool. to Protest, 327 F. Supp. 2d at 76.
156. Bl(a)ck Tea Soc'y, 378 F.3d at 14.
157. Id. But see infra notes 137-138 (discussing the Ninth Circuit's view of this approach to the ample alternative channels of communication requirement).
158. Id. at 15.
159. Menotti v. City of Seattle, 409 F.3d 1113, 1123 (9th Cir. 2005) (citing a Seattle report indicating that "violent protestors were less than one percent of the total protestors").
160. Id. at 1120.
161. Id. at 1121.
162. Id. at 1124.
163. Id. at 1125.
164. Id. at 1159 (Paez, J., dissenting).
165. Id. at 1125.
166. Id. at 1125 & n.16.
167. See id. at 1125-28 (describing the exceptions to the Order and the police implementation of it); see also id. at 1159 (Paez, J., dissenting) ("While the text of Order No. 3 may be content neutral, the City's policy was to apply the law selectively such that it was not narrowly tailored to serve its asserted non-speech-related interest of preserving safety and order."). Judge Richard Paez, writing in dissent, explained the city's policy as follows: Notably, the Order allowed anyone who did not visibly display opposition to the WTO to enter the zone, without regard to dangerousness or likelihood of violence. While the police scoured for "No WTO" signs and buttons, there was no evidence that officers checked bags for crowbars, weapons, or bombs. . . . . . . . Even those who should have been granted access to the zone according to the plain terms of the Order, such as people who lived or worked in the zone, were denied entry if they wore "No WTO" stickers or carried protest signs. Id. at 1162-63 (Paez, J., dissenting).
168. Id. at 1117-18.
169. Id. at 1118.
170. Id. at 1129 (citing City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring); Ctr. for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1164 (9th Cir. 2003)).
171. See Menotti, 409 F.3d at 1131. Several times in its opinion, however, the court also argued that the city had a significant interest in attracting the future business of international conferences, stating at one point that "[t]he City also had an interest in seeing that the WTO delegates had the opportunity to conduct their business at the chosen venue for the conference; a city that failed to achieve this interest would not soon have the chance to host another important international meeting." Id. at 1131-32; see also id. at 1141 ("If the City had permitted chaos and violence to continue unabated, it would . . . lose its standing as a host city for international conferences . . . ."); id. at 1155 ("When a city is charged with the critically important responsibility of hosting a convention of world leaders, a setting in which the eyes of the world are on the city and our country, and our nation's reputation is at stake as well, the city must have the power to maintain civic order . . . ."). To suggest that such an interest is significant is to suggest that it has the potential to outweigh First Amendment speech rights, and one has to wonder whether an interest in attracting occasional convention business can ever carry such weight. See id. at 1168 n.8 (Paez, J., dissenting) ("I am not convinced that a city's interest in hosting such an event is 'significant' for purposes of this analysis."); cf. id. at 1167 n.6 (Paez, J., dissenting) ("[T]he city did not have a constitutionally significant interest in sheltering delegates from the unpleasantness or inconvenience of a large demonstration."). As one commentator has explained: [T]he assumed neutrality of . . . pen and zone schemes should be questioned more thoroughly, particularly because these schemes [are] devised by authorities having a far greater interest in avoiding protest speech than in reasonably accommodating it. A large motive in luring the national political conventions, indeed, any major convention or significant event like the Olympics or the Super Bowl, is for a host city to attract the spending power of delegates and to put on a great show for those delegates and for the national media. Convention boosters recruit business communities with promises of boom days. Host city mayors become deeply involved in bidding for conventions and great effort is taken to resolve labor disputes and other such sticking points that might mar the presentation. Those representing the city, then, are motivated to keep the peace largely by keeping noisy and irate demonstrators far away from delegates and other visitors. National political party personnel are equally interested in smooth sailing. . . . . . . At the 2004 conventions, the pens and zones would most likely be filled by protestors expressing views that did not fit well into the upbeat and urbane images the Boston and New York City authorities wished to project. If so, the assumed content neutrality of the pens and zones should not be so easily accepted. Nanes, supra note 12, at 208-09 (footnotes omitted). This asserted significant interest in attracting convention business also highlights a larger issue: whether government may legitimately serve as the midwife to North Korean-style political theater.
172. Menotti, 409 F.3d at 1132-37. But cf. id. at 1169 (Paez, J., dissenting) ("Order No. 3 banned peaceful expressive activity without regard to the City's stated safety-related goals . . . . The majority would allow the police to search people they suspected of carrying stickers and handbills, but concludes that it 'would not have been practical' for police to search for crowbars or spray paint.").
173. Compare id. at 1138-41, 1141 n.54 (arguing that, despite the no-protest zone, protestors retained the "ability to communicate directly across the street from most WTO venues"), with id. at 1173 & n.16 (Paez, J., dissenting) (stating that Order No. 3 "confined all demonstrations to outside areas where the message the protestors sought to convey may never have reached the intended audience," and disputing the majority's assertions to the contrary).
174. See id. at 1141-42. In a footnote, the court also acknowledged, but did not evaluate, the First Circuit's argument in Bl(a)ck Tea Society that the ample alternative channels requirement may be satisfied by messages that, although not expressed within sight and sound of the intended hearer, may be picked up the media. See id. at 1139 n.49 (citing Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 14 (1st Cir. 2004)). Judge Paez, however, was not satisfied by this approach, arguing that the court "should dispel any notion that media interest in an event can be a substitute for constitutionally-required alternative avenues of communication. As the Seventh Circuit stated in Hodgkins [v. Peterson], 'there is no internet connection, no telephone call, no television coverage that can compare to attending a political rally in person . . . .'" Id. at 1174 (Paez, J., dissenting) (quoting Hodgkins v. Peterson, 355 F.3d 1048, 1063 (7th Cir. 2004)).
175. See Bl(a)ck Tea Soc'y, 378 F.3d at 10-11 (describing the procedural history of the case).
176. See id. at 15 ("With the Convention looming and with few options at its disposal, we think the district court's resolution of the preliminary injunction request was fully supportable."); Coal. to Protest the Democratic Nat'l Convention v. City of Boston, 327 F. Supp. 2d 61, 77 (D. Mass 2004), aff'd sub nom. Bl(a)ck Tea Soc'y, 378 F.3d 8 ("[T]he City of Boston . . . has provided protestors with an inadequate space. Unfortunately, . . . there is little time, and no practical means, available for significant modifications to the secured environment."). In his concurrence, Judge Kermit Lipez strongly emphasized timing: Time constraints shadowed every aspect of this case. In the future, if the representatives of demonstrators ask the courts to modify security measures developed over many months of planning for an event of this magnitude, they should come to court when there is enough time for the courts to assess fully the impact that modifications will have on the security concerns advanced. . . . . . . Adequate time means months or at least weeks to address the issues. It does not mean five days before the event begins. Bl(a)ck Tea Soc'y, 378 F.3d at 16 (Lipez, J., concurring).
177. 477 F.3d 1212 (10th Cir. 2007).
178. Id. at 1217.
179. Id. 144. Id.
180. Id. at 1217-18.
181. Id. at 1218-19.
182. Id. at 1226.
183. Id. at 1217.
184. Id. at 1220.
185. Id. (emphasis added). Later in its opinion, the court reiterated this principle in perhaps even more startling language, arguing that "[w]hile an extremely important government interest does not dictate the result in time, place, and manner cases, the significance of the government interest bears an inverse relationship to the rigor of the narrowly tailored analysis." Id. at 1221 (emphasis added). The court cited no authority for its first statement, but for this latter statement, the court cited as authority the narrow tailoring standard of Board of Trustees, SUNY v. Fox, 492 U.S. 469, 480 (1989), a commercial speech case that the Supreme Court has only applied to other commercial speech cases. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
186. See Citizens for Peace in Space, 477 F.3d at 1220 ("[T]he City's security plan was narrowly tailored to advance its significant security interest because the security zone . . . directly and effectively protected the conference from the threat of terrorism, explosives, and violent protests.").
187. Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
188. Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).
189. Citizens for Peace in Space, 477 F.3d at 1220 (quoting Edenfield v. Fane, 507 U.S. 761, 770 (1993)).
190. The court did eventually address the "burden substantially more speech than [] necessary" statement from Ward, as well as other arguments that conflicted with the court's presumption of narrow tailoring. See id. at 1222-25. However, the court reached the "obvious conclusion" that the security zone was narrowly tailored before it considered these contrary arguments in a portion of the opinion that the court clearly regarded as dicta. See id. at 1222.
191. Id. at 1220.
192. Id. at 1226.
193. Id. at 1220.
194. See 18 U.S.C. § 871 (2000); Watts v. United States, 394 U.S. 705, 707 (1969) ("The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence."); see also S. Elizabeth Wilborn Malloy & Ronald J. Krotoszynski, Jr., Recalibrating the Cost of Harm Advocacy: Getting Beyond Brandenburg, 41 WM. & MARY L. REV. 1159, 1180-85 (2000) (noting that the Supreme Court has upheld significant limits on free speech when justified by overriding governmental objectives).
195. See Frisby v. Schultz, 487 U.S. 474, 486 (1988) (upholding a town ordinance that banned targeted picketing of private residences because such picketing "inherently and offensively intrudes on residential privacy").
196. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding a ban on the placement of political campaign signs on public property, including objects adjacent to the streets, and on city-owned utility poles based on the city's legitimate interest in promoting aesthetics by avoiding unsightly visual clutter).
197. See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (upholding a free association claim that the Boy Scouts could exclude openly gay scouts and scoutmasters because imposing a state nondiscrimination policy on the Boy Scouts "would significantly burden the organization's right to oppose or disfavor homosexual conduct"); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 581 (1995) (upholding a free association claim by the sponsors of a St. Patrick's Day parade in Boston that inclusion of an openly gay and lesbian parade unit would constitute an unwanted, forced association and would compromise the sponsors' free speech rights because the government lacks power "to compel the speaker to alter [its] message by including one more acceptable to others").
198. It is not so implausible to imagine a legal regime that sought to protect national symbols and figures from disparagement. See Douglas Frantz, As Former Leader Faces Jail, Turks Rethink Limits on Speech, N.Y. TIMES, July 11, 2000, at A3 (describing a prison sentence for a Turkish politician who publicly criticized a government policy as anti-Islamic);
199. Mar Roman, Spanish Journal's Royal Cartoon Stirs Fuss, SEATTLE TIMES, July 21, 2007, at All (reporting that "[a] judge ordered copies of a satirical magazine confiscated . . . for publishing a . . . cartoon of Spain's Crown Prince Felipe in an intimate bedroom scene with his wife" because the cartoon constituted "[l]ibeling the crown," a crime punishable with up to "a two-year prison sentence");
200. Jeffrey Simpson, For Turkey's Sake, Stop Snowing Orhan Pamuk, GLOBE & MAIL (Canada), Jan. 21, 2006, at A23 (reporting on the criminal prosecution of Nobel Laureate and author Orhan Pamuk for writing novels that violate the criminal proscription against "anti- Turkishness");
201. Christopher Torchia, Punk Band's Protest Song Lands Members a Trial Date, SEATTLE POST-INTELLIGENCER, July 16, 2007, at A4 (reporting on the criminal prosecution of a Turkish band, whose song mocks the local SAT test, because the song defames the State).
202. Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992).
203. Id. at 134-36 (noting that the "[l]isteners' reaction to speech is not a content-neutral basis for regulation," collecting relevant case citations, and concluding that "[t]his Court has held time and again [that] [r]egulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment" (internal citations and quotations omitted)).
204. See Terminiello v. City of Chicago, 337 U.S. 1, 4-5 (1949); Murdock v. Pennsylvania, 319 U.S. 105, 115-17 (1943); see also Fiss, Free Speech and Social Structure, supra note 62, at 1416-18 (noting the reasons supporting the "heckler's veto" doctrine and its well-established status in free speech jurisprudence);
205. Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 214-16 (1983) (noting the rule that government may not proscribe speech because of an audience's hostile reaction to its content).
206. Cf. United States v. Kahriger, 345 U.S. 22, 38 (1953) (Frankfurter, J., dissenting) ("[W]hen oblique use is made of the taxing power as to matters which substantively are not within the powers delegated to Congress, the Court cannot shut its eyes to what is obviously, because designedly, an attempt to control conduct which the Constitution left to the responsibility of the States, merely because Congress wrapped the legislation in the verbal cellophane of a revenue measure.").
207. See Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978).
208. Hess v. Indiana, 414 U.S. 105, 106-07 (1973).
209. Id. at 107-08.
210. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927-29 (1982).
211. Id. at 903-04.
212. Interestingly, the Supreme Court of Canada has defined free speech very expansively, up to and including threats of violence. See Irwin Toy Ltd. v. Quebec (Attorney Gen.), [1989] 1 S.C.R. 927, 970-71 (Can.). In Canada, the Charter of Rights and Freedoms, Constitution Act, 1982, Part I, § 2(b), Canada Act 1982, ch. 11, sched. B (U.K.), which is similar to the U.S. Bill of Rights, protects any human activity reasonably intended to convey a message or meaning. Prominent Canadian legal scholars, such as Richard Moon, have questioned the wisdom of abjuring a purposive definition of protected expression. See RICHARD MOON, THE CONSTITUTIONAL PROTECTION OF FREEDOM OF EXPRESSION 65-75 (2000). For a general overview of free speech principles in Canada, see KROTOSZYNSKI, supra note 28, at 26-92.
213. Claiborne Hardware Co., 458 U.S. at 927.
214. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (noting that the First Amendment's protections reflect "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open").
215. 505 US. 123 (1992).
216. See id. at 134-36.
217. Conditioning expressive activity on the payment of a fee constitutes a lesser burden on would-be protestors' ability to communicate a message than a flat ban on all expressive activity on particular public property otherwise appropriate for expressive activities. See generally McConnell v. Fed. Election Comm'n, 540 U.S. 93, 316 (2003) (Kennedy, J., concurring in part and dissenting in part) ("Nor is § 323(d) narrowly tailored . . . . It is a complete ban on this category of speech. To prevent circumvention of contribution limits by imposing a complete ban on contributions is to burden the circumventing conduct more severely than the underlying suspect conduct could be burdened."); Ward v. Rock Against Racism, 491 U.S. 781, 799-800 (1989) ("'A complete ban [on speech activity in a public forum] can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil.'") (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988)).
218. See supra text accompanying notes 1-13, 99-163.
219. See generally, e.g., Jennifer Davies, Jack in the Box Rival Has a Beef Over Ads on TV, SAN DIEGO UNION- TRIB., May 26, 2007, at C-1 (describing the offensive advertisements and Carl's Jr.'s lawsuit over Jack in the Box ads).
220. See Peter Baker, White House Guidebook on Protestors, SEATTLE TIMES, Aug. 23, 2007, at All (noting that the official Presidential Advance Manual instructs those organizing and supervising presidential events to banish protestors to areas that are not within eyesight or earshot of the president, and quoting the guidebook as stating that "1[i]f it is determined that the media will not see or hear [the protestors] and that they pose no potential disruption to the event, [then] they can be ignored'" quoting OFFICE OF PRESIDENTIAL ADVANCE, supra note 11, at 35).
221. See Lüth, 7 BverfGE 198, 208 (1958); see also DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 175 (1994); KROTOSZYNSKI, supra note 28, at 118-20, 123-30;
222. Edward J. Eberle, Public Discourse in Contemporary Germany, 47 CASE W. RES. L. REV. 797, 825 (1997).
223. Grundgesetz [Basic Law], arts. 5(3), 8(2), 18, 20(4), 21(2) (F.R.G.) [hereinafter Basic Law]; see also KROTOSZYNSKI, supra note 28, at 96-102.
224. See, e.g., German National Anmem Case, BverfGE 81, 298, reprinted in, 2 DECISIONS OF THE FEDERAL CONSTITUTIONAL COURT 450 (1992);
225. Flag Desecration Case, BverfGE 81, 278, reprinted in, 2 DECISIONS OF THE FEDERAL CONSTITUTIONAL COURT 437 (1992). See generally KROTOSZYNSKI, supra note 28, at 117-18.
226. Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969).
227. See KROTOSZYNSKI, supra note 28, at 114-18, 136-37.
228. United States v. Dennis, 183 F.2d 201, 212-13 (2d Cir. 1950) ("In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."), aff'd, 341 U.S. 494 (1951); see WILLIAM W. VAN ALSTYNE, FIRST AMENDMENT CASES AND MATERIALS 140-42 (1st ed. 1991) (describing the operation of Judge Hand's Dennis test);
229. Gerald Günther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975) (providing a comprehensive overview of Judge Hand's First Amendment jurisprudence, including his Dennis sliding scale of risk approach to permitting government to proscribe or punish speech); cf. Masses Pub. Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917) (featuring Judge Hand propounding a different test that relies on whether the words directly and plainly advocate unlawful conduct, rather than on the probable effects of the words at issue), rev'd, 246 F. 24 (2d Cir. 1917).
230. Under Brandenburg, regardless of the precise nature of the risk, government may regulate only if a clear and present danger of imminent lawlessness exists. Brandenburg v. Ohio, 395 U.S. 444, 447-449 (1969); see Malloy & Krotoszynski, supra note 159, at 1192-97. Hence, Brandenburg prohibits government proscription of speech advocating the necessity of exploding a nuclear bomb in a population center just as it prohibits proscription of speech advocating income tax avoidance or speech advocating recoining parking meters. The government's ability to regulate is entirely based on a realistic probability that the speech will cause the harm to be avoided.
231. The government did not, in any of the cases, proffer any specific evidence showing that the would-be protestor-plaintiffs had ever engaged in - or even threatened to engage in-violence or made efforts to disrupt the meetings; instead, misconduct by some anti-WTO protestors, in Seattle in 1999, served to establish the universal plausibility of the government's security concerns. See Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1220-21, 1226 (10th Cir. 2007); Menotti v. City of Seattle, 409 F.3d 1113, 1122-23, 1133-35, 1137 (9th Cir. 2005); Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 13-14 (1st Qr. 2004). As the First Circuit put the matter, "[w]e do not believe a per se rule barring the government from using past experience to plan for future events is consistent with the approach adopted in the [Supreme] Court's time-place-manner jurisprudence" even when "there is no evidence in the record . . . indicating that demonstrators intended to use such tactics at the Convention." Id. at 13.
232. N.Y. Times Co. v. United States, 403 U.S. 713 (1971).
233. See supra Part I.C.
234. Brandenburg, 395 U.S. at 444-47.
235. Under a true marketplace theory of free speech, any speech would enjoy protection on the theory that government must be barred from attempting to control access to the market. The problem, of course, is that the Supreme Court has not generally been willing to commit itself to a true marketplace approach, permitting selective regulation of speech based on content thought to be of low value, such as obscenity and child pornography. See, e.g., Osborne v. Ohio, 495 U.S. 103 (1990) (holding that the First Amendment privilege to possess obscene materials in the home, under Starkey v. Georgia, 394 U.S. 557 (1969), does not apply to child pornography); New York v. Ferber, 458 U.S. 747 (1982) (holding child pornography, and perhaps any nude picture of an actual child, as wholly outside the First Amendment's protection); Miller v. California, 413 U.S. 15 (1973) (declaring that sexually explicit materials fall outside the scope of First Amendment protection if the materials, taken as a whole, lack serious artistic, literary, or scientific value; if the materials appeal to the prurient intellect; and if, applying contemporary community standards, the materials are patently offensive); cf. Irwin Toy, Ltd. v. Quebec (Attorney Gen.), [1989] 1 S.C.R. 927, 968-70 (Can.) (holding that any human activity designed to communicate a message, excluding only acts (and perhaps threats) of violence, comes within the ambit of Canada's analogue to the First Amendment's Free Speech Clause); R. v. Sharpe, [2001] 1 S.C.R. 45, 62, 66-68 (Can.) (citing Canadian decisions defining the freedom of speech very broadly, and applying those decisions to hold that child pornography comes within the definition of protected expression under section 2(b) of the Charter, but also noting that government may limit protected expression to advance other important interests, such as the prevention of social harm to others). In a truly unregulated marketplace, sexually explicit materials would have the right to compete for attention against position papers arguing for their suppression and would be subject to no more regulatory burdens than would core political speech. See KROTOSZYNSKI, supra note 28, at 24 ("Under a pure market-based approach . . . speech should be treated the same regardless of its content. Its success or failure [in the market] would be a function of its ability to persuade.").
236. KROTOSZYNSKI, supra note 28, at 102-04, 126-30.
237. Id. at 51-72, 90-92.
238. William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV. 91, 123-24 (1984). Professor Mayton observes that the Sedition Act "could hardly have been a starker instance of self-serving politics." Id. at 123.
239. For a discussion of the Sedition Act's effect on the opposition press, see David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 515-16 (1983);
240. David Yassky, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1710-12 (1991).
241. See Gooding v. Wilson, 405 U.S. 518, 528 (1972) (protecting threats directed to a police officer, including "white son of a bitch, I'll kill you"); Rosenfeld v. New Jersey, 408 U.S. 901, 901, 904 (1972) (holding protected the use of the phrase mother fucking at a public school board meeting "on four occasions, to describe the teachers, the school board, the town, and his own country"); Cohen v. California, 403 U.S. 15, 22-23 (1971) (holding protected the wearing of a jacket emblazoned with "Fuck the Draft" in a Los Angeles courthouse).
242. 343 U.S. 250 (1952).
243. 315 U.S. 568 (1942).
244. See generally supra note 45.
245. KROTOSZYNSKI, supra note 28, at 82-89 (discussing the inconsistent enforcement of hate speech regulations in Canada).
246. See supra text accompanying notes 159-179.
247. Koffler & Gershman, supra note 23, at 816.
248. Id. at 819.
249. Id.; see also Alan J. Koshner, The Founding Fathers and Political Speech: The First Amendment, the Press and the Sedition Act of 1798, 6 ST. LOUIS U. PUB. L. REV. 395, 400-404 (1987); Mayton, supra note 37, at 97-108.
250. Koffler & Gershman, supra note 23, at 820.
251. Id. at 822.
252. David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel Into First Amendment Jurisprudence, 45 AM. J. LEGAL HIST. 154, 160 (2001).
253. LEONARD LEVY, FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY: LEGACY OF SUPPRESSION 11 (1963).
254. Koffler & Gershman, supra note 23, at 822 (quoting Trial of John Tutchen, 14 How. St. Tr. 1095, 1128 (1704)).
255. Jenkins, supra note 208, at 162-63.
256. Id. at 162.
257. LEVY, supra note 209, at 19 (estimating "probably not more than half a dozen" prosecutions); see also Harold L. Nelson, Seditious Libel in Colonial America, 3 AM. J. LEGAL HIST. 160, 165-70 (1959) (finding only nine prosecutions brought against publishers during the colonial period).
258. LEVY, supra note 209, at 20.
259. Anderson, supra note 196, at 510.
260. Nelson, supra note 213, at 160.
261. Id. at 510-11.
262. Koshner, supra note 205, at 404.
263. Nelson, supra note 213, at 170.
264. LEVY, supra note 209, at 181 (internal citation omitted).
265. Id. at 181-82 (quoting Willard Hurst, Treason in the United States, 58 HARV. L. REV. 266 (1944)).
266. Jenkins, supra note 208, at 164.
267. Id. at 165.
268. Id.
269. Thomas Carroll, Freedom of Speech and of the Press in the Federalist Period: The Sedition Act, 18 MICH. L. REV. 615, 648 (1920).
270. Id. at 639.
271. Id. at 641.
272. James Morton Smith, The Sedition Law, Free Speech, and the American Political Process, 9 WM. & MARY Q. 497, 502 (1952).
273. Id. at 503.
274. Id. at 502.
275. Id. (internal citation omitted).
276. Carroll, supra note 225, at 648.
277. David Yassky, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1711 (1991).
278. For an account of every prosecution under the Sedition Act, see JAMES MORTON SMITH, FREEDOM'S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL LIBERTIES 254 (1956) (also detailing the prosecution of the Act's state-law equivalents during Adams' presidency).
279. Id.; see also Smith, supra note 228, at 504.
280. LEVY, supra note 209, at 259.
281. Id. (internal citation omitted).
282. Yassky, supra note 233, at 1711.
283. Id. By far the most ludicrous of the Sedition Act prosecutions was that of Luther Baldwin, who was indicted, convicted, and fined $150 for stating that the country would have benefitted if some cannon fire had lodged in President Adams' buttock. See id.
284. Smith, supra note 228, at 504.
285. Id.
286. Id. at 254, 504-05. The Boston Chronicle had already been prosecuted for violation of the Sedition Act in March 1799. Its bookkeeper, Abijah Adams, was convicted under the Act because the Chronicle's editor, Thomas Adams, was too ill to stand trial. SMITH, supra note 233, at 254.
287. SMITH, supra note 233, at 254.
288. Smith, supra note 228, at 505.
289. Anderson, supra note 196, at 515 n.345 (internal citation omitted).
290. Id. at 515.
291. Ch. 30, 40 Stat. 217 (1917), repealed by Act of June 25, 1948, ch. 645, § 21, 62 Stat. 864.
292. Kalven, supra note 34, at 207.
293. Koffler & Gershman, supra note 23, at 832. David Jenkins also asserts that the Espionage Act, like the Sedition Act of 1798, constituted seditious libel because it "specifically applied to press activity that defamed the federal government." Jenkins, supra note 208, at 205.
294. Id. at 207; see Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Schenck v. United States, 249 U.S. 47 (1919); see also Koffler & Gershman, supra note 23, at 831-40 (discussing and critiquing several of the principal cases arising under the Espionage Act of 1917). Contemporary scholarly commentary also supported the notion that the federal government could criminalize seditious libel. See Corwin, supra note 23.
295. Ch. 439, 54 Stat. 670 (1940) (current version at 18 U.S.C. § 2385 (2000)).
296. Koffler & Gershman, supra note 23, at 840.
297. 341 U.S. 494 (1951).
298. See Koffler & Gershman, supra note 23, at 840-44.
299. See infra text accompanying notes 110-158.
300. 376 U.S. 254 (1964).
301. Kalven, supra note 34, at 192-93.
302. U.S. CONST. amend. I.
303. See infra Part IV.A (discussing the history of the right to petition).
304. Kalven, supra note 34, at 209; see also Williams v. Wallace, 240 F. Supp. 100, 105-06 (M.D. Ala. 1965) (issuing an injunction to facilitate a civil rights march in protest of Alabama's discriminatory voter registration practices, noting that "[t]he law is clear that the right to petition one's government for the redress of grievances may be exercised in large groups," and holding that the conduct of Alabama's state government
305. See infra Part IV.C.1 (discussing petitioners' immunity from seditious libel prosecution).
306. See infra Part IV.C.2 (discussing petitioners' historical right to have their petition be received and heard by the government).
307. See infra Part IV.D (discussing the historical limitations on the right to petition).
308. Cf. Frisby v. Schultz, 487 U.S. 474, 479-81, 484-86 (1988) (rejecting, on privacy grounds, a right to protest at a person's home).
309. See, e.g., James E. Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899, 905 n.22 (1997);
310. Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances: Cut From a Different Cloth, 21 HASTINGS CONST. L.Q. 15, 51 (1993);
311. Stephen A. Higginson, Note, A Short History of the Right to Petition Government for the Redress of Grievances, 96 YALE L.J. 142, 165-66 (1986). But see Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979) ("The public employee surely can associate and speak freely and petition openly . . . . But the First Amendment does not impose any affirmative obligation on the government to listen [or] to respond . . . .");
312. Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U. L. REV. 739, 740 (1999) ("[W]e do not agree that the Petitions Clause imposes on Congress a general obligation to consider or respond in any fashion to petitions that it receives.");
313. Norman B. Smith, "Shall Make No Law Abridging. . .": An Analysis of the Neglected, but Nearly Absolute, Right of Petition, 54 U. CIN. L. REV. 1153, 1190-91 (1986) ("Such an extension of the right of petition . . . could exceed the practical limitations of our system of government; with our present capacity for multiplying documents, the business of government could be halted if each paper produced in a massive petition campaign is addressed.").
314. In the 1960s, a handful of federal judges were bold enough to suggest that the Petition Clause can and should do independent work in political protest cases. See Adderley v. Florida, 385 U.S. 39, 52 (1996) (Douglas, J., dissenting) ("We do violence to the First Amendment when we permit this 'petition for redress of grievances' to be turned into a trespass action. . . . To say that a private owner could have done the same if the rally had taken place on private property is to speak of a different case, as an assembly and a petition for redress of grievances run to government . . . ."); Williams v. Wallace, 240 F. Supp. 100, 108 (M.D. Ala. 1965) ("[T]he extent of a group's constitutional right to protest peaceably and petition one's government for redress of grievances must be, if our American Constitution is to be a flexible and 'living' document, found and held to be commensurate with the enormity of the wrongs being protested and petitioned against.").
315. See Kalven, supra note 34, at 205 ("The concept of seditious libel strikes at the very heart of democracy. . . . My point is not the tepid one that there should be leeway for criticism of the government. It is rather that defamation of the government is an impossible notion for a democracy. In brief, I suggest that the presence or absence in the law of the concept of seditious libel defines the society. . . . If . . . it makes seditious libel an offense, it is not a free society no matter what its other characteristics.").
316. For in-depth histories of the Petition Clause, see generally Carol Rice Andrews, A Right of Access to Court Under the Petition Chuse of the First Amendment: Defining the Right, 60 OHIO ST. L.J. 557 (1999); Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 FORDHAM L. REV. 2153 (1998); Smith, supra note 264; Spanbauer, supra note 264; Higginson, supra note 264. The history of the Petition Clause is also discussed in Lawson & Seidman, supra note 264; Pfander, supra note 264;
317. Eric Schnapper, "Libelous" Petitions for Redress of Grievances - Bad Historiography Makes Worse Law, 74 IOWA L. REV. 303 (1989);
318. Rebecca A. Clar, Comment, Martin v. City of Del City: A Lost Opportunity to Restore the First Amendment Right to Petition, 74 ST. JOHN'S L. REV. 483 (2000);
319. James Filkins, Note, Tarpley v. Keistler: Patronage, Petition, and the Noerr-Pennington Doctrine, 50 DEPAUL L. REV. 265 (2000);
320. Kara Elizabeth Shea, Recent Development, San Filippo v. Bongiovanni: The Public Concern Criteria and the Scope of the Modern Petition Right, 48 VAND. L. REV. 1697 (1995).
321. See Schnapper, supra note 267, at 318; Smidi, supra note 264, at 1155-62, 1165-69; Spanbauer, supra note 264, at 34-39. Even after their codification in the First Amendment, the rights of speech, press, and assembly in both the United States and England still lacked the near absolute character of the right to petition, largely due to the continuing existence of seditious libel laws. Compare id. (describing the means by which the rights of speech and press continued to be limited through the early nineteenth century), and Smith, supra note 264, at 1181 ("[P]rior to the American Revolution, several of the other rights guaranteed by the Bill of Rights, including the cognate rights of speech, press, and assembly, were subjected to widespread suppression."), with Bill of Rights, 1689, 1 W. & M., c. 2, § 5 (Eng.), reprinted in 5 THE FOUNDERS' CONSTITUTION 1 (Philip B. Kurland & Ralph Lerner eds., 1987) ("[I]t is the right of the subjects to petition the King, and all commit[]ments and prosecutions for such petitioning are illegal."), and Smith, supra note 264, at 1165 ("In England, after 1702, there appear to have been no cases of criminal prosecution or parliamentary contempt proceedings on account of petitioning.").
322. See Smith, supra note 264, at 1168-69 (describing the role of petitioning in giving birth to the rights of free expression and assembly); id. at 1179 ("Petitioning, in a sense, is the fountain of liberties, because historically it was the first popular right to be recognized. Vigorous exercise of the right to petition has been associated with forward strides in the development of speech, press, and assembly."). Highlighting the supremacy of petitioning, an English judge in 1688 interrupted the Recorder's comparison of writing a book with writing a petition to say, "Pray, good Mr. Recorder, don't compare the writing of a book to the making of a petition; for it is the birthright of the subject to petition." Trial of the Seven Bishops for Publishing a Libel, 12 How. St. Tr. 183, 415 (1688), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 189, 191.
323. Mark, supra note 267, at 2163 & nn.24 & 26 ("The ability to apply for redress of grievances was, at least in its earliest stages, clearly not a tool for general grievances, much less reform, or even a mechanism for first hearing an individual's grievance, but rather was akin to an appellate mechanism from the decisions of inferior authorities.").
324. Id. at 2164-65.
325. MAGNA CARTA, C. 61 (1215), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 187.
326. See 2 RUDOLPH GNEIST, THE HISTORY OF THE ENGLISH CONSTITUTION 13 (Philip A. Ashworth trans., G.P. Putnam's Sons 1886) ("[T]he whole of the Middle Ages is a practical refutation of the theory of an executive power in abstracto. The motions of the commoners and the petitions which they recommended, gain with each ensuing generation a stronger stress, which metamorphosed their right of praying into a virtual right of co-resolution."); see also Mark, supra note 267, at 2165-66; Smith, supra note 264, at 1155-56; Spanbauer, supra note 264, at 23.
327. See Mark, supra note 267, at 2166 n.34. As Rudolph Gneist explained: The custom of presenting private petitions immediately to the Lower House, with the desire that the House be pleased to exert its influence with the King, occurs for the first time under Henry IV. Such petitions are now directed sometimes to the King, sometimes to the King in council, sometime to the King, Lords, and Commons, sometimes to the Lords and Commons, and sometimes to the Commons alone, with the request to use their good offices with the King and the council. 2 GNEIST, supra note 273, at 14-15.
328. Smith, supra note 264, at 1155 (quoting J.E.A. JOLLIFFE, THE CONSTITUTIONAL HISTORY OF MEDIEVAL ENGLAND 405 (4th ed. 1961)).
329. See Spanbauer, supra note 264, at 19-20.
330. Mark, supra note 267, at 2169-70 ("Petitioning came to be regarded as part of the Constitution, that fabric of political customs which defined English rights. . . . Petitioning became part of the regular political life of the English, not just because it was conducive to the interests of petitioners, and not just because it provided a foundation for Parliament . . . to assert its own expanding legislative powers. It was also a mechanism that bound the English together in a web of mutual obligation and acknowledgment of certain commonalities.").
331. Smith, supra note 264, at 1157.
332. 1 WILLIAM R. ANSON, THE LAW AND CUSTOM OF THE CONSTITUTION 393 (5th ed. 1922). Prior to the seventeenth century, most petitions were private petitions, "which asked for changes or exemptions from the law on behalf of individuals." Id.
333. Smith, supra note 264, at 1157.
334. Trial of the Seven Bishops for Publishing a Libel, 12 How. St. Tr. 183, 415 (1688), reprinted in 5 THE FOUNDERS CONSTITUTION, supra note 268, at 189; see infra text accompanying notes 328-338.
335. Smith, supra note 264, at 1160.
336. See Mark, supra note 267, at 2175 ("Colonial experience appears not only to have replicated England's widespread use of the petition, it likely extended it in both law and practice.").
337. See id. at 2176-78. For example, the Body of Liberties adopted by the Massachusetts Bay Colony Assembly in 1641 promised an exceptionally broad right to petition almost fifty years before passage of the English Bill of Rights: Every man whether Inhabitant or fforreiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting, and either by speech or writing to move any lawfull, seasonable, and materiall question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it [can] be done in convenient time, due order, and respective manner. Id. at 2177 (quoting A COPPIE OF THE LIBERTIES OF THE MASSACHUSETTS COLLONIE IN NEW ENGLAND (1641), reprinted in 1 DOCUMENTS ON FUNDAMENTAL HUMAN RIGHTS: THE ANGLO-AMERICAN TRADITION 122, 124 (Zechariah Chafee, Jr., ed. & compiler, 1963) (1951)).
338. Higginson, supra note 264, at 145 n.10.
339. Id. at 146.
340. THE DECLARATION OF INDEPENDENCE (U.S. 1776), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 199.
341. See Mark, supra note 267, at 2192 ("Having met the sole precondition for reception by petitioning 'in the most humble terms,' the colonists felt entitled to consideration."); see also DECLARATION OF RIGHTS AND GRIEVANCES § 13 (1765), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 198 ("That it is the right of the British subjects in these colonies, to petition the king or either house of parliament.").
342. See Mark, supra note 267, at 2199-2203; Smith, supra note 264, at 1174.
343. See Proceedings in the House of Representatives, June 8, 1789, in 1 ANNALS OF CONGRESS (Joseph Gales, Sr. ed. 1834), reprinted in BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT 100-27 (1955).
344. Id. at 110. Limiting petitioning to "the Legislature" was consistent with the early state protections of the right to petition. See Mark, supra note 267, at 2200-03 (attributing the limitation to "the republican faith in the legislature and the central role accorded that body in republican thought," and stating that it "did not mean that the petitioning of other branches of the state government was barred or left unprotected"). The change from "the Legislature" to "the government" in the final version of the amendment is, however, more consistent with British and colonial practice. See Spanbauer, supra note 264, at 40. For a discussion of Madison's use of the word "apply" rather than "petition," see Mark, supra note 267, at 2208-09.
345. This is not to say that the Petition Clause, as adopted, escaped debate amongst early American legal scholars. In his commentaries on Blackstone, St. George Tucker criticized the language of the Clause as "savour[ing] of that stile of condescension, in which favours are supposed to be granted." 1 ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA app. at 299 (1803). In reply, Joseph Story wrote in his famous Commentaries on the Constitution that "Mr. Tucker has indulged himself in a disparaging criticism upon the phraseology of this clause . . . . But this seems to be quite overstrained; since it speaks the voice of the people in the language of prohibition, and not in that of affirmance of a right, supposed to be unquestionable, and inherent." 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 745-46 (Fred B. Rothman & Co. 1991) (1833).
346. See Proceedings in the House of Representatives, Aug. 15, 1789, in 1 ANNALS OF CONGRESS (Joseph Gales, Sr. ed. 1834), reprinted in PATTERSON, supra note 290, at 163-79.
347. Id. at 169.
348. See Proceedings in the House of Representatives, Sept. 24, 1789, in 1 ANNALS OF CONGRESS (Joseph Gales, Sr. ed. 1834), reprinted in PATTERSON, supra note 290, at 210.
349. See Higginson, supra note 264, at 156; Andrews, supra note 267, at 642 n.292 ("Most commentators acknowledge that Congressional processing of petitions forever changed after abolitionists, beginning in the 1830s, inundated Congress with petitions urging it to end slavery in the District of Columbia."). The right to petition enjoyed equal popularity in England during this period. See 1 ANSON, supra note 279, at 395 ("In the five years ending 1789 [the number of petitions presented to the House] was 880. In the five years ending 1831 it was 24,492. In the five years ending 1877 it was 91,846. The cost of printing petitions amounted between 1826-1831 to £12,000."); Mark, supra note 267, at 2215 n.291 (stating that Parliament received 33,898 petitions in 1843).
350. Higginson, supra note 264, at 157.
351. Mark, supra note 267, at 2216-17 (citations omitted). For an in-depth discussion of the gag rule and its effects on the right to petition, see Higginson, supra note 264, at 155-65, and Mark, supra note 267, at 2215-26.
352. Mark, supra note 267, at 2226-28.
353. See Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 43-44 (1867).
354. See, e.g., United States v. Cruikshank, 92 U.S. 542, 552 (1875) ("The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.").
355. Thomas v. Collins, 323 U.S. 516, 530 (1945).
356. See, e.g., Wayte v. United States, 470 U.S. 598, 610 n.11 (1985) ("Although the right to petition and the right to free speech are separate guarantees, they are related and generally subject to the same constitutional analysis.").
357. See infra text accompanying notes 320-322 (discussing the Noerr-Pennington doctrine).
358. Part of the problem may also be that litigants invoking the Petition Clause have not done a particularly good job of distinguishing claims under the Petition Clause from run-of-the-mill Speech or Assembly Clause claims. See, e.g., Wayte, 470 U.S. at 610 n.11 (refusing to consider a Petition Clause claim independently where the plaintiff failed to argue that the government's conduct "burdened each right differently" and treating speech and petition claims "as essentially the same"). With respect to a right to protest proximate to government officials, however, this Article argues for an independent, Petition Clause-based claim. Indeed, because the lower federal courts have repeatedly rejected any right to protest near an intended audience under the Speech and Assembly Clauses, the government's policy of banishing dissenters from areas physically proximate to officeholders does burden the Petition Clause "differently" than other First Amendment rights.
359. 472 U.S. 479, 484-85 (1985).
360. See generally Schnapper, supra note 267 (arguing that the Court's historical analysis in McDonald is incorrect).
361. McDonald, 472 U.S. at 482. But see Spanbauer, supra note 264, at 17 ("[C]ontrary to the Court's assertion, the right to petition was cut from a different cloth than were the rights of speech, press, and assembly.").
362. McDonald, 472 U.S. at 485.
363. See generally Schnapper, supra note 267 (arguing that, historically, petitioners were immune from liability for both civil and criminal libel); see also Andrews, supra note 267, at 624 (describing the unique values protected by the Petition Clause).
364. McDonald, 472 U.S. at 485.
365. Id.
366. See supra Part IV.A.
367. See ANTONIN SCALIA, A MATTER OF INTERPRETATION 14-18, 23-25, 29-32, 37-41 (1997);
368. see also WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 268, 282, 324 (1994).
369. See U.S. CONST. amend. I.
370. See, e.g., Employment Div. v. Smith, 494 U.S. 872 (1990) (free exercise); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (press); Lemon v. Kurtzman, 403 U.S. 602 (1971) (establishment); Cohen v. California, 403 U.S. 15 (1971) (speech); De Jonge v. Oregon, 299 U.S. 353 (1937) (assembly).
371. See, e.g., Rumsfeld v. Forum for Academic and Inst'l Rights, Inc., 547 U.S. 47 (2006); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Healy v. James, 408 U.S. 169 (1972).
372. See, e.g., Phillips v. Wash. Legal Found., 524 U.S. 156 (1998) (takings); United States v. Williams, 504 U.S. 36 (1992) (grand jury indictment); Mathews v. Eldridge, 424 U.S. 319 (1976) (due process); Miranda v. Arizona, 384 U.S. 436 (1966) (self-incrimination); Fong Foo v. United States, 369 U.S. 141 (1962) (double jeopardy).
373. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004) (confront witnesses); Doggett v. United States, 505 U.S. 647 (1992) (speedy trial); Duncan v. Louisiana, 391 U.S. 145 (1968) (impartial jury); Washington v. Texas, 388 U.S. 14 (1967) (compulsory process); Gideon v. Wainwright, 372 U.S. 335 (1963) (assistance of counsel); Bartell v. United States, 227 U.S. 427 (1913) (nature and cause of the accusation).
374. 365 U.S. 127 (1961).
375. 381 U.S. 657 (1965).
376. Noerr, 365 U.S. at 138-39; Pennington, 381 U.S. at 669-70.
377. Kalven, supra note 34, at 192-93.
378. See, e.g., Gregory v. Chicago, 394 U.S. 111 (1969); Adderley v. Florida, 385 U.S. 39, 40-42 (1966); Brown v. Louisiana, 383 U.S. 131 (1966) (plurality opinion); Henry v. Rock Hill, 376 U.S. 776 (1964) (per curiam); Edwards v. South Carolina, 372 U.S. 229 (1963); NAACP v. Button, 371 U.S. 415 (1963); Bates v. Little Rock, 361 U.S. 516 (1960).
379. McDonald v. Smith, 472 U.S. 479, 488 n.2 (1985) (Brennan, J., concurring).
380. Mark, supra note 267, at 2171. A nineteenth-century historian described the formalities of petitioning as follows: It must be written, it must be free from erasures or interlineations, it must not be a simple memorial or remonstrance, but must conclude with a prayer. In matter it must be respectful of the privileges of the House, and free from disloyalty or expression of intention to resist the law. Beyond this the inclination of modern time is to allow the widest latitude to petitions. 1 ANSON, supra note 279, at 396. Consistent with this view, Gregory Mark argues that "had historical understandings been fully extended [in McDonald], the plaintiff would have had his claim dismissed by the trial court at the outset. Mr. McDonald's 'petitions' were not actually petitions at all, but rather letters to President Reagan (copied to others)." Mark, supra note 267, at 2228 n.358. If "historical understandings" are limited to those derived from England, then this assessment is undoubtedly correct.
381. Mark, supra note 267, at 2177 (emphasis added) (quoting A COPPIE OF THE LIBERTIES OF THE MASSACHUSETTS COLLONIE IN NEW ENGLAND, supra note 284).
382. Schnapper, supra note 267, at 313 (citing His Majesty's Gracious Declaration to All His Loving Subjects for Liberty of Conscience (Apr. 1687 & May 1688)).
383. Id.
384. Id. at 313-14.
385. Id. at 314.
386. Id.
387. See generally Trial of the Seven Bishops for Publishing a Libel, 12 How. St. Tr. 183, 415 (1688), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 189-96.
388. Smith, supra note 264, at 1160; see also Schnapper, supra note 267, at 314-15.
389. Bill of Rights, supra note 268, at 1.
390. Smith, supra note 264, at 1165.
391. See, e.g., Spanbauer, supra note 264, at 29-31 (describing the restrictions (or lack thereof) on the right to petition in the colonies).
392. Smith, supra note 264, at 1176. New York Assemblyman Jedediah Peck was, however, indicted for "a vehemently worded petition to Congress advocating repeal of the Alien and Sedition laws" - one of many such petitions - but the case was dropped "due to pressure from popular demonstrations in Peck's favor." Id.
393. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273-77 (1964) ("Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."); see also Kalven, supra note 34, at 209 (stating that since the Supreme Court's decision in Sullivan, "[t]he central meaning of the [First] Amendment is that seditious libel cannot be made the subject of government sanction").
394. 378 F.3d 8 (1st Cir. 2004).
395. 477 F.3d 1212 (10th Cir. 2007).
396. See supra Part I.C.
397. See supra Part IV.A; see also 2 WILLIAM STUBBS, THE CONSTITUTIONAL HISTORY OF ENGLAND 276-77 (1880) (describing the process for receiving and hearing petitions during the reign of Edward I). As previously mentioned, some scholars would take the right to be heard a step further by also requiring a government response to every petition for redress of grievances. See sources cited supra note 264. Although this view is undoubtedly consistent with the history of the Petition Clause, we tend to agree with those who argue that such a requirement is simply too impractical in the modern era. See id. This is particularly true with less formal forms of petitioning such as political protests, in which, even if government officials were inclined to respond, the identities and contact information of those petitioning may not be readily ascertainable.
398. 2 STUBBS, supra note 343, at 602 (internal citation omitted).
399. See supra Part IV.A (providing historical examples showing a right of in-person presentation of petitions).
400. The Tumultuous Petition Act, 1661, 13 Chas. 2, st. 1, c. 5, § 2 (Eng.), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 188; see also 4 BLACKSTONE, supra note 53, at *146-47 ("Nearly related to this head of riots is the offence of tumultuous petitioning; which was carried to an enormous height in the times preceding the grand rebellion. Wherefore by statute . . . no petition shall be delivered by a company of more than ten persons.").
401. Trial of the Seven Bishops for Publishing a Libel, 12 How. St. Tr. 183, 192 (1688), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 268, at 192.
402. Smith, supra note 264, at 1157.
403. Spanbauer, supra note 264, at 23.
404. Id. at 28; see also Mark, supra note 267, at 2177 (quoting A COPPIE OF THE LIBERTIES OF THE M ASSACHUSETTS COLLONIE IN NEW ENGLAND, supra note 284).
405. Spanbauer, supra note 264, at 26 (stating that the right to petition "did not include a right to a personal audience").
406. Blackstone's few mentions of the right to petition discuss little else. See 1 BLACKSTONE, supra note 53, at *138-39 (discussing the security-based restrictions on the right to petition); 4 BLACKSTONE, supra note 53, at *147 (discussing "the offence of tumultuous petitioning").
407. Smith, supra note 264, at 1158.
408. See id. at 1158-59.
409. U.S. CONST. amend. I (emphasis added); see also WILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 124 (2d ed. 1829), reprinted in 5 THE FOUNDERS' CONSTITUTION, supra note 53, at 207. ("It may, however, be urged, that history shows how those meetings and petitions have been abused . . . . But besides the well known irrelevancy of the argument from the abuse of any thing against its use, we must remember that by requiring the assembly to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.").
410. 477 F.3d 1212 (10th Cir. 2007).
411. At an absolute minimum, these principles counsel that the outcome in Citizens for Peace in Space was a clear violation of the protestors' Petition Clause right to protest proximate to government officials to whom their intended protest was addressed. Given that they had voluntarily agreed to limit the number of protestors to six and to submit to the same rigorous security screening applied to members of the press, there was simply no justification for denying their right to petition.
412. E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 132-40 (1961) (sustaining a generic mass media campaign as protected petitioning activity because it was "a publicity campaign to influence governmental action").
413. See supra Part I.C.
414. Cf. Bruce Ackerman, The Emergency Constitution, 113 YALE L.J. 1029 (2004) (arguing that limits must exist regarding the extent to which claims of national emergency may justify erosions of constitutional practices derived from the Constitution itself); Blasi, supra note 15 (arguing forcefully that judges should enforce the First Amendment most aggressively in times of great national stress because it is precisely at those times that free speech comes under the greatest threat and also, paradoxically, the time at which full and free political discussion is most crucial).
415. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 14 (1st Qr. 2004). In this respect, Professor Timothy Zick's arguments about protecting spatial relationships has some relevance; Zick argues that the notion of space should also take into account the overall context of proposed speech activity, including the ability of a speaker to reach an intended audience. See Zick, Space, Place, and Speech, supra note 12, at 499-505; Zick, Speech and Spatial Tactics, supra note 12, at 630-46. This view certainly represents one way of addressing the problem: broadening the notion of spatial access to make it more context specific. From our perspective, the problem with this approach is that nothing in the existing legal doctrine seems to take seriously the idea that audience access is a relevant consideration when testing reasonable time, place, and manner restrictions on speech in a public forum. On the contrary, the lower federal courts have routinely brushed aside arguments that alternative public forums were insufficient substitutes because the forums limited access to a preferred target audience. See, e.g., Bl(a)ck Tea Soc'y, 378 F. 3d at 13-14; Citizens for Peace in Space v. Colo. Springs, 477 F.3d 1212, 1220-22 (10th Cir. 2007). In fact, if any potential access to an audience is sufficient to meet the "reasonable alternative channels of communication" prong of the Ward test, then the ability to blog about the concerns on the Internet would potentially satisfy the existing time, place, and manner test. See Bl(a)ck Tea Soc'y, 378 F.3d at 14 (arguing that the ability to reach a target audience via the local media and the Internet, rather than person-to-person, satisfies the alternative channels of communication requirement).
416. U.S. CONST. amend I.
417. For example, limits on the number of protestors permitted to demonstrate proximate to a venue might be permissible, as would a requirement of clearing a security check before reaching the demonstration area. If a group of fifty protestors has been screened for noxious substances and weapons, and found to possess only placards and signs opposing a government policy, it is difficult to understand why such a group must be excluded entirely from the earshot or eyesight of the government officials and other guests attending the event. By the same token, if a mass of 10,000 persons attempted to invoke the right of petition by blocking the entrance to the meeting site of a national nominating convention, we do not believe that the Petition Clause should stand as an obstacle to the government, disallowing a protest of such a size and with such an objective.
418. United States v. Harriss, 347 U.S. 612, 635 (1954) (Jackson, J., dissenting).