Re: Arriba Castro


McDuck wrote:
On Mon, 20 Mar 2006 18:02:25 -0500, McDuck
<wallymcduckDELETEME@xxxxxxxxxxx> quacked:


I agree and I certainly defer to your expertise in this area. I was
only referring to how the US (at the federal level) will restrict any
sort of political statements from appearing even in the vicinity of
visiting Chinese political leadership for fear of offending them (I'm
not even talking about Taiwanese independent groups but people who are
pro-Tibet people who are hardly vociferous). I suppose the federal
courts have routinely upheld the local permit laws.

I don't know about the PRC stuff --- I've not seen any litigation.
I'll check with some colleagues who do that stuff. Banning posters in
a public space seems to me to raise a first amendment problem of the
first order.

As promised, I did talk to a couple of constitutional law colleagues.
Neither knew of any litigation specifically dealing with PRC but don't
claim there is none --- just not at SCt and probably not at Ct of
Appeals. I'm told that in DC, the Capital police rather routinely
create a large security zone, where they eliminate the possibility of
demonstrations and posters, etc.. Unless the security reason is
patently false, it is difficult to challenge this zone limit,
especially in DC. Reasonable time and place limits on speech are not
prohibited under the SCt's reading of the First Amendment.

However, there would be a First Amendment violation if the government
did not allow some avenue for protest outside the security zone. The
cases hold that the government can make reasonable time and
placelimits on speech but cannot ban the speech. That is the
black-letter position I was referring to myself in the prior post. So
we'd need to get deeply into the facts to make any final assessment. I
am told that protesters have had some success in NYC in challenging
overly restrictive security measures that prevent speech, but I do not
know any details. Sorry for that.

Contrast the above with the protests in a baseball park. The initial
issue there is whether there is any state action at all. We all can
ban speech in our private lives --- e.g., I can keep my neighbors from
putting a pro-Chaney poster on my lawn <g>. If the stadium is purely
private, there probably is no state action.

As you well know, the First Amendment prohibits the government from
restricting speech, not private parties not acting for the government.
There are some shopping mall cases where the puboic areas are viewed
as public space, requiring free speech, but those are special
circumstances, not the general rule, and inapplicable to a baseball
park.

There could be state action, or at least a weak argument for it, if
the stadium is owned and managed by the government. Even then, a ban
on in-stadium political action at an international event probably
would be an acceptable time and place limitation, although protests
outside the stadium (which would not interfer with the games) would
have to be permitted.
--McDuck

Thank you very much. I really appreciate you taking the time to follow
up and explaining patiently.

.

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