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Constitutionally Protected Symbolic Speech
by Stephen Lendman
Email: lendmanstephen (nospam) sbcglobal.net
17 Nov 2011
Constitutionally Protected Symbolic Speech - by Stephen Lendman
Symbolic speech examples include leafleting, picketing, demonstrating, marching, speaking publicly, flag burning, displaying t-shirts, armbands, banners and placards, sit-ins, as well as camping out in public places.
With some exceptions, all have First Amendment protection. Numerous Supreme Court decisions addressed the issue. Some agreed. Others didn't.
For example, in Hague v. Committee for Industrial Organization (1939), Justice Owen Roberts expressed the Court's plurality opinion, saying:
"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."
"Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."
While most Justices didn't concur, subsequent opinions endorsed symbolic speech rights. In Schneider v. State (1939), the Court ruled that city ordinances to keep streets clean and presentable didn't justify prohibiting literature and leaflet distribution to willing recipients.
In Kunz v. New York (1951), the Court held that mandating permits to speak publicly on religious issues was unconstitutional.
In Shuttlesworth v. City of Birmingham (1969), the Court ruled for petitioner Shuttlesworth's right to lead orderly 1963 civil rights marches. Doing so violated a city ordinance requiring permit permission. Calling it unconstitutional, the decision stated it was denied to censor ideas, not obstruct traffic.
Various High Court decisions ruled that speech, including camping out in public places, is subject to time, place and manner regulations such as traffic control. However, protected speech must have alternate ways to communicate without undo restrictions.
For example, in Clark v. CCNV, the Court ruled for the National Parks Service's right to prohibit camping out overnight because doing so complied with reasonable time, place and manner restrictions of expression.
The Court said incidental speech restrictions are constitutional provided they're not "greater than necessary to further a substantial governmental interest."
However, the Court stressed that the restrictions must be "narrowly tailored." That requirement is satisfied as long as it "promotes a substantial governmental interest that would be achieved less effectively absent the regulation."
Imposed restrictions must also be content neutral.
Three categories of public property were defined:
• streets and parks (considered a public forum), traditionally used for public assembly and debate; government may not prohibit communicative activity therein; moreover, content-neutral time, place, and manner restrictions must be justified to serve some legitimate interest;
• limited public forum space for use by certain groups, provided legitimate discriminatory limitations are justified by compelling government interests; and
• government "may reserve a forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."
According to New York Mayor Michael Bloomberg, "The Constitution doesn't protect tents. It protects speech and assembly." True or false?
It depends on whether legitimate concerns are justified, as well as other issues discussed above. Moreover, interpretations differ. Restrictions deemed proper by some may not be by others.
Pace University Law Professor Bennett Gershman calls New York's tent city protected speech, saying:
Various Supreme Court cases affirmed that First Amendment protections aren't limited to speech and assembly. They also include "certain conduct that is intended to convey a message."
New York's tent city resonated globally. As a result, Bloomberg wants it removed, despite being "orderly and harmless."
It doesn't "threaten public safety or traffic congestion." At most, sanitation concerns might be raised. However, "protesters apparently are keeping things relatively clean and safe."
Weighing "the right of individual expression...against the public interest in peace and quiet, the balance typically tilts toward free speech unless the government can demonstrate a substantial interest in curtailing the conduct, and also (shows that it's) not because of any disagreement with the content of the conduct-speech, but for some other legitimate government interest."
Saying so isn't enough. Proving it conclusively is essential. Bloomberg didn't try. Yet New York Supreme Court Justice Michael Stallman overruled Manhattan Supreme Court Justice Lucy Billings' restraining order in his favor. She said protesters must be allowed back with "tents and other property." So far, they can come without tents and other belongings.
OWS lawyer Allan Levine argued that banning tents infringed First Amendment rights, saying:
"The power of this symbolic speech is that it's a 24-hour occupation," replicated nationally. "This conveys a special message."
Restricting First Amendment freedoms threatens all others even though guidelines regarding speech-related conduct aren't clear.
Gershman said camping overnight in Central Park would differ markedly from Liberty Park Plaza (what protesters call Zuccotti Park).
Moreover, its symbolic significance dramatically demonstrates "the economic disparities in our society without threatening any substantial public interest...."
As a result, it's "well within" First Amendment parameters. Bloomberg should endorse, not condemn it.
Of course, he and Wall Street are closely linked. At issue isn't public interest concerns, just his own and fellow Wall Street crooks.
They want nothing interfering with their right to manipulate world markets for profit, ripping off countries and people globally.
Key above all else is stopping them. Otherwise, real change isn't possible. Accomplishing job one opens all other possibilities.
A better world is possible, but wishing won't make it so. The mother of all struggles demands staying the course for the long haul.
There's plenty of incentive because the alternative's too grim to accept!
Stephen Lendman lives in Chicago and can be reached at lendmanstephen (at) sbcglobal.net.
Also visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.
This work is in the public domain