Sheehan T-shirt incident: When do speech restrictions apply?

Wednesday, February 1, 2006

The phrase “the House rules” carried a double meaning at last night’s State of the Union address by President Bush — apparently even for U.S. Capitol Police.

Antiwar protester Cindy Sheehan and the wife of a Florida congressman both wore T-shirts bearing visible messages into a visitors’ gallery inside the House chamber — and both were told they were violating regulations prohibiting “protests” in those seats.

News reports this afternoon said authorities had decided to ask that charges against Sheehan be dropped, and that officers should not have approached or removed either woman.

Deputy House Sergeant of Arms Kerri Hanley was quoted by the Associated Press as saying, “They were operating under the misguided impression that the T-shirt was not allowed. The fact that she (Sheehan) was wearing a T-shirt is not enough reason to be asked to leave the gallery, or be removed from the gallery, or be arrested.”

The AP said Sheehan, who was invited to attend the speech by Rep. Lynn Woolsey, D-Calif., was wearing a black T-shirt bore the inscription: “2245 Dead. How many more?” A St. Petersburg Times story said that “Beverly Young, wife of Rep. C.W. Bill Young (R-Fla.), said she was ejected from the House gallery … because she was wearing a T-shirt that said: “Support the Troops — Defending Our Freedom’.”

Anytime the government muzzles citizen speech — particularly when directed at elected officials — it ought to raise First Amendment concerns about improper infringement of free speech and of the right to petition the government, another of the five freedoms under the amendment.

Both Sheehan and Young were in the grand tradition of Americans with diverse views freely expressing their opinions directly to their elected representatives and others.

Suffragettes a century ago used banners, sashes and protest marches to campaign in Washington, D.C., for voting rights for women. Picket signs, bullhorns and the ubiquitous T-shirt slogan are the modern-day methods of choice in public debates ranging from war and free trade to local zoning and tax matters.

Government officials may place reasonable restrictions on remarks and conduct at public meetings as long as the rules and enforcement are not selective. Essentially, the same rules have to apply to all speakers or visitors, and cannot be based on viewpoint. And those rules have to be reasonable, allowing citizens the opportunity to express themselves. Young said Capitol police told her she was being treated the same as Sheehan.

Restrictions on protests and free expression are nothing new to Washington, D.C.

An upcoming book with two First Amendment Center colleagues among the co-authors (Oxford University Press — First Freedoms: A Documentary History of First Amendment Rights in America) notes that restrictions on demonstrations in and around the Capitol are nothing new. An 1882 law, not overturned until 1972, was adopted to preserve “the quiet and dignity of the Capitol of the United States.” It prohibited “any harangue or oration” and banned any display of “any flag, banner or devices designed or adapted to bring into public notice any party, organization or movement” anywhere on the Capitol grounds. Some restrictions of that type remain in effect.

And for those wishing to support or oppose issues before the U.S. Supreme Court, these rules apply: Public sidewalks on the perimeter of the Court are considered “public forms” and protesters can march there. But the same protest rights would not apply inside the Supreme Court building — where strict rules of conduct apply even to lawyers arguing cases — or on the steps right outside the Court.

If the Sheehan-Young incidents serve any long-term purpose, it may be to bring attention to even-more-debatable attempts by city and county officials to restrict remarks by their constituents, either through time limitations, by requiring prospective speakers to register days or weeks in advance, or even rules banning “negative remarks.” Those attempts will not meet constitutional muster if the goal is simply to silence gadflies or avoid real discussion on difficult subjects.

But questions today range even more widely over when, where and how Americans can voice their views. There are ongoing attempts in about a dozen states thus far to restrict demonstrations at funerals, prompted in large part by a group associated with the 75-member Westboro Baptist Church from Kansas that has appeared regularly at funeral services of soldiers killed in Iraq, voicing an anti-gay message. Legislators must balance concerns over family privacy with constitutional requirements that all messages — even those most might find distasteful or repugnant — be heard in the “public square.”

There’s a regular drumbeat of lawsuits over school administrators’ attempts to control or punish student speech, in school, on the Web and — again — on T-shirts they might wear to class. A large, inflatable rat has been a contentious element of labor picketing. Courts have come down in differing ways on what constitutes “disruption” of school or workplace, or is protected, allowable — even desirable — exercise of constitutional rights.

President Bush — who arrived last night after both women had left the House chambers — also had moved on by this afternoon, traveling to Nashville, Tenn., to speak to an audience assembled in the auditorium that normally hosts the Grand Ole Opry. Outside, about 100 protesters held up signs critical of his administration.

Gene Policinski is executive director the First Amendment Center. Letters can be addressed to either: 1101 Wilson Blvd., Arlington, VA 22209; or 1207 18th Ave. South, Nashville, TN 37212. E-mail:

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