Is sleeping outside Hennepin County Government Center “speech”?

By sleeping outside the Hennepin County Government Center, Occupy Minnesota adherents are sending a message through what they are doing as much as what they are saying.  And it’s possible, but likely not probable, that the First Amendment protects their acts.

It is not entirely clear whether sleeping in a public place is, essentially, speech.   In 1984, the United States Supreme Court held that the National Park Service could regulate the “time, place, and manner” of protests in Lafayette Park across from the White House and therefore could prohibit overnight sleeping.  But interestingly, the court “assumed for present purposes” that sleeping in connection with a demonstration is “expressive conduct protected to some extent by the First Amendment.”  And two civil-rights-focused justices, Thurgood Marshall and William Brennan, wrote a dissent persuasively explaining why those particular protests should have been protected as speech:  because by sleeping outside, the protesters were trying to draw attention to homelessness.

Similarly, Occupy Minnesota protesters hope to draw attention to people who have been made homeless through foreclosures.  And to that end, the Minnesota effort has rightfully claimed some success.

But should the protesters’ rights be litigated in court, lawyers will have a tough time arguing that Hennepin County has no right to regulate the time, place, and manner of protests.   The other side likely would cite a 2008 federal-court decision where the federal court in Minnesota cited the Layfayette Park case to help explain how and why the City of St. Paul had a right to regulate protests outside the Republican National Convention.

Of course, Occupy Minnesota would be free to argue that the federal court got it wrong and that this situation is different.  And in some ways, it most certainly is.

Off the Hook

True to form, the St. Paul City Attorney’s Office says it won’t prosecute “journalists” who were caught in the web of arrests outside the Republican National Convention.  That’s the right call.  But, as I predicted, the call was made for the wrong reasons.  As I wrote a couple weeks ago:

Once again, we are on the verge of government endeavoring to determine who is and who is not a journalist.  This should frighten anyone who cherishes free speech.  The framers of the First Amendment would shudder at the words “media credentials.”  Online communicators in particular, beware.

Jane Kirtley, a media ethics guru at the University of Minnesota and former head of a tremendous outfit called the Reporters Committee for Freedom of the Press, was quoted as agreeing with the idea that defining who is and how is not a journalist is tricky business.  She’s exactly right.

The First Amendment was not adopted to protect journalists.  It was enacted to protect free expression for everyone.  True, the First Amendment specifically ensures a free press, but I simply do not believe that “the press” had the same meaning in 1791 as it does today.  Early Americans wanted to make sure that the people who operated printing presses and therefore enabled large-scale free expression would not be subject to the burdensome licensing schemes prevalent in Europe.  The First Amendment’s drafters did not intend to extend special privileges to massive for-profit media conglomerates or even to bloggers for that matter.  Rather, they sought to protect the rights of anyone who had something to say, protesters included.

As for those protesters, I completely agree that some at the RNC crossed the line.  As I said previously, those who participated in the near-riots committed criminal acts.  But the large number of onlookers who merely sought to express themselves, to watch people express themslves, or to document people expressing themselves committed no crimes.  Cases closed.

RNC-ya. Whew. Now What About The Journalists?

The Republican National Convention delegates have left St. Paul, except for those who live around here.  The so-called “anarchists” are gone, too, except for those who live in Minnesota either permanently (in parental basements?) or temporarily (in the Ramsey County Jail).  What a shame that a handful of rabblerousers felt need to step outside the cloak of the First Amendment to damage property while engaging in otherwise legal, valid, and need-to-be-heard concerns about our country and about the party currently controlling the White House.

Troublingly, journalists — some from the mainstream media, some not — were arrested along with the vandals.  The arrests came while the journalists were engaging in their First Amendment rights to gather news.  I wore a suit to work yesterday in case I had to go to court to try to get a reporter for The Uptake sprung from policy custody.  Luckily, she was released around 2:30 yesterday morning, and I never had to don a tie on a Friday.

Now what?  Who gets prosecuted for criminal activity, and who does not?  As Police Chief John Harrington was quoted in this morning’s Pioneer Press, “the media isn’t exempt from (a) legal order.”  True.  According to the paper, Harrington has indicated that now a “policy decision” (the newspaper’s words, not Harrington’s)  must be made to determine what to do with the journalists who “were simply caught up in the middle.”

A policy decision.  Oh boy.   Once again, we are on the verge of government endeavoring to determine who is and who is not a journalist.  This should frighten anyone who cherishes free speech.  The framers of the First Amendment would shudder at the words “media credentials.”  Online communicators in particular, beware.

This is a topic I have written on several times before, most often in the context of “shield laws” that generally protect journalists from having to reveal confidential sources.  My views put me at odds with many of my journalist friends, but here is how I see it:

Anytime government is authorized to determine who is or is not a journalist, government essentially engages in a licensing scheme by awarding increased First Amendment rights and protections to a select group of media interests, which, generally, garner substantial revenue from corporate advertising.  Licensing schemes have their roots in England, where the king used to decide who could and could not print newspapers.  The schemes were among the travesties that so many of our ancestors were eager to escape, and are a big reason why we have the First Amendment in the first place.

In light of that history, St. Paul police and prosecutors need to tread with caution in coming days.  Charges should be dropped not because someone was a journalist, but because authorities lack clear probable cause that any journalist committed a crime related either to damaging property or inciting (as opposed to documenting) a potential riot.  Pushing Dumpters into police cars is a crime.  Recording the worst civil unrest in St. Paul history is not.  Simple as that.

Citizen journalist, or not? Hmm ... (Photo by Steven P. Aggergaard)

Warning: Puppet Possession Is A Crime During RNC

The search warrant from one of yesterday’s raids involving would-be Republican National Convention disrupters should cause all of us pause.  The warrant identifies “components” that could be used to make Molotov cocktails and “improvised explosive devices” as among the suspected contraband.  OK, that’s troublesome.

But the warrant also lists maps of downtown St. Paul, spray paint, nails and screws, police scanners, computer printers, and, um “hollowed out puppets,” just to name a few.  And it goes on to state that “the possession of the property described above constitutes a crime,” that the property “was used as a means of committing a crime,” that it “constitutes evidence which shows a crime has been committed,” and that it is “in possession of a person with intent to used [sic] such property as a means of committing a crime.”

How is possessing a hollowed-out puppet, even one kept next to components that go into the common Molotov cocktail, evidence that a crime has been committed?  Under this line of reasoning, possessing a gun in your home could very well constitute a crime, and I doubt many of the conventioneers in town would stand for that.  Rounding up guns in people’s houses on the theory that a crime might be committed is something that a, um, puppet dictator would do.

News reports state that local police ingeniously infiltrated the alleged anarchists’ hangout and gained valuable insights into their disturbing plans to disrupt the Republicans’ First Amendment right to assemble.  Good job!  But why did the police not wait for one of the anarchists to step outside their hangout, hollowed-out puppet and Molotov cocktail in hand, before seizing the persons and property?  Taking affirmative steps toward RNC disruption would, it seems to me, constitute a crime.

So be careful this week.  Keep the lawnmower gasoline away from those old pickle jars in the garage.  And any hollowed-out puppets in the basement should promptly be filled with sand.

St. Paul Put To The (Pro)Test

The Republican National Convention is upon us, and here comes word that St. Paul police recovered slingshots, devices to disable buses, and urine by the gallon when raiding the so-called RNC Welcoming Committee’s hangout yesterday and today.  How disturbing.  To the degree that these folks have come to (or live in) our city to commit crimes, the effort should be condemned.  What a travesty for those of us who value free speech and free assembly.  What a shame that a few can ruin things for all of us.

However, lost amid all this are the reasons why so many people are so upset.  A war founded on faulty intelligence.  Failures to distinguish between Iraq and Afghanistan.  Guantanamo. Waterboarding.  Warrantless wiretapping.  No-bid contracts to rebuild the mess.  Not to mention a red herring called “drill here, drill now,” Swift Boating about Obama’s religious faith, and plummeting home values.  It could — it should — drive a sane person to the streets.

But thanks to the folks who have bred fears about criminal intent, downtown St. Paul resembles what used be East Berlin.  Have you been downtown?  I was, around 7:30 this morning, during an extended morning run.  I must admit, I was unprepared for what I saw.  Concrete barricades topped by chain-link fences that can accommodate razor wire on the top, darkened stoplights, a “FOX NEWS” sign that is a story tall, police officers at every corner, a camera on every streetlight.

This is St. Paul?  This is America?  What meaningful means do we normal folks have to invoke our First Amendment right to get the attention of the GOP power brokers who have a role in righting America?  For the next several days, none.

Most disturbing was what I saw at the Dorothy Day center, the large homeless shelter kitty-corner from the Xcel Energy Center.  They’ve wrapped the fences with a dark black fabric that almost entirely obscures the forms of the homeless human beings on the other side of the fence, human beings who inconveniently are just yards from the Best Politics That Money Can Buy.

I suppose it was done in the name of privacy for our neighbors who happen to have no homes.  How unfortunate it would be if a TV camera captured one of their images and beamed it into somebody’s living room.  How unfortunate for the unfortunate.  How unfortunate for St. Paul.  How unfortunate for the First Amendment.

Minnesota State Fair and RNC Free Speech

“The First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.”

Those were the exact words of the United States Supreme Court in Heffron v. International Society for Krishna Consciousness, Inc., a 1981 case involving, of all things, the Hare Krishnas’ rights to free speech (or lack thereof) at our very own Minnesota State Fair.  And those were the exact words that federal judge Joan Ericksen used last month when she ruled that the City of St. Paul’s restrictions on protesters at the Republican National Convention are constitutionally permissible.  (Star Tribune link to the decision here.)

The Heffron case is part of a thick stack of case law affirming the right of government to reasonably regulate the time, place, and manner of free expression.  Such cases have arisen around the country, but few have been more colorful than the Minnesota State Fair case.  The dispute arose days before the 1977 fair when the Hare Krishnas asserted their right to distribute literature and seek donations without being restricted to rented booths.   Remarkably, they won.  But a year later, a different Ramsey County judge dealt the Krishnas a loss.  And in 1981, the United States Supreme Court issued the Heffron decision that has effectively kept everyone — from religious groups to food-processor salesmen — tethered to booths at fairs and in airports nationwide.  (MSP’s booth rule is here.)

The decision has been cited around the country when free speech rights conflict with society’s interest in law and order and individuals’ intersets in being left alone.  The most impassioned disputes have involved requirements that anti-abortion advocates stay away from women immediately outside abortion clinics.

And now, the State Fair case has come home again, as part of a ruling that St. Paul’s plans for the RNC protesters are reasonable.  Stay tuned.