Zoning free expression: Public safety and the power of protest

Sunday, November 18, 2001

Protests are rarely pretty.

Of all the First Amendment freedoms, the right to peaceably assemble is most likely to lead to traffic disruptions, public inconvenience and increased security costs.

No mystery there. It’s a right that by definition involves multiple parties. Very often angry and passionate parties.

We saw anger, passion – and yes, violence – in the streets of Seattle in late 1999 as thousands of protesters gathered to speak out against the World Trade Organization conference being held in the city.

While the great majority of protesters were law-abiding and peaceable, some were not. Some demonstrators smashed windows, spray-painted buildings and set spot fires. Hundreds were arrested as police struggled to maintain order.

Overmatched and inadequately prepared for the onslaught, the city declared a civil emergency, imposing curfews and closing off a full 25 blocks surrounding the convention center from Nov. 30-Dec. 4, 1999. The move enabled delegates from 134 member nations to move freely to the convention and eased security concerns surrounding President Bill Clinton’s scheduled appearance.

In effect, the city created a protest-free zone around the WTO conference, suspending the First Amendment right of assembly in this zone for almost a week.

And now a federal judge has found that this extraordinary step was a legitimate and constitutional exercise of the city of Seattle’s police powers.

“The evidence shows that the [city of Seattle] had reason to implement the zone,” wrote U.S. District Judge Barbara J. Rothstein. “The police had faced violent clashes with protesters for nearly 24 hours, and there is no evidence that the violence was expected to subside.”

Applying the Supreme Court’s test for regulation of free expression, Rothstein decided that the protest-free zone was not designed to suppress a specific viewpoint, that it served a legitimate government purpose and that it allowed for “ample alternatives for expression.”

Rothstein said that despite the 25-block restriction, protesters’ voices could still be heard.

“They could protest just outside the boundaries of the zone and anywhere else in the city,” she wrote. “Moreover, they had access to the media and to the public beyond the zone.”

It’s easy to understand the city’s temptation to shut down the area surrounding the convention center. After all, thugs were literally paralyzing the gathering of delegates, an assembly also protected by the First Amendment. Moving the problem across town was the most expedient answer. Maybe too expedient.

The judge’s decision has drawn relatively little attention. After all, at a time when we’re growing accustomed to being patted down before we board an airplane, how outrageous does it sound to move protesters across town in the interest of public safety?

And yet are we really prepared to give cities the right to bar freedom of expression over a multiple-block area? The city of Seattle decided it was too dangerous to allow leafleting, but opened the protest-free area for shopping.

In addition, most of those who were pushed away from the convention center were in fact law-abiding demonstrators exercising their Constitutional rights. The right of assembly is the right to stand together in public places and voice our views, typically directed towards those with whom we disagree. In this case, the city of Seattle’s inability to control hundreds of unruly demonstrators cut off the assembly rights of thousands.

Of course, sometimes efforts to zone speech can have unintended consequences. When President George W. Bush was inaugurated last January, permits were issued to protesters for specific sites along the route. The result: some concentrated blocks of boos and catcalls. It didn’t help that the president’s motorcade slowed to a crawl as it passed these highly audible protesters.

As Maria Shriver reported it on NBC: “We’re paused at about Pennsylvania and 13th, which is not a very good place to pause a motorcade because it seems to be filled with protesters who are carrying the signs. … they’re screaming and chanting, “Not my president, not our president.”

The Seattle restrictions were virtually unprecedented in their scope. In a similar case in 1997, a federal court invalidated a citywide ban on protesting in San Francisco in the wake of the first Rodney King trial verdict, finding that “preventing First Amendment activities before demonstrators have acted illegally or before the demonstration poses a clear and present danger is presumptively a First Amendment violation.” In Seattle, of course, the violence had already occurred.

Judge Rothstein’s support of Seattle’s ban would seem to encourage other cities to take similar steps when faced with unwieldy crowds. Still, there’s clearly a legal burden on the part of the city to overcome First Amendment concerns. Judge Rothstein went to some lengths to describe the near-riot conditions in Seattle in justifying the limits on the protests.

Seattle’s restrictions on protests – and the court’s decision in upholding them – remind us that there will always be a temptation to truncate freedom of speech and assembly in the interests of preserving public safety and security.

The challenge for all of America – particularly since Sept. 11 – is to embrace our essential liberties in the face of fear and not take shortcuts that short-circuit our most fundamental freedoms.

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