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September 25, 2004

Arresting Protesters: Neiderer

Since they don't allow comments at the Volokh Conspiracy (a mistake, IMO), I'm commenting here on this brief post from Orin Kerr about recent arrests of Bush protesters. It's a followup to a longer piece that criticizes a Maureen Dowd editorial about the arrest of Sue Neiderer because Dowd failed to mention that the charges against Neiderer were dropped and she was released. The suggestion is that Dowd somehow failed by not mentioning this. Perhaps. But isn't the issue here that the damage was already done at the point of arrest? I mean, it's great the charges were dropped, but the fact that Neiderer was arrested in the first place is what's offensive, isn't it? It's much like police rounding up protesters at mass demonstrations for little to no reason, holding them until the protest is over, then releasing them w/no charge. “Oops! Sorry! We don't want to prosecute because we already accomplished our goal, which was to violate your right to express yourself when and where it might have made a difference.” So while Professor Kerr says Neiderer's case “looks kind of bogus,” I beg to differ. The police (or secret service) should not have such unfettered freedom to arrest people who say “disagreeable” or “controversial” things in public places. The fact that those people are later released w/out being charged does not in any way reduce the fact that the police violated their rights to express themselves. I haven't studied First Amendment law yet. From the little I understand at this point, the state has the right to regulate the “time, place, and manner” of expression. Does this kind of police conduct fall within that sort of regulation? And if so, am I the only one who thinks it should not?

Posted September 25, 2004 01:12 PM | election 2004 general politics

i agree that it's bullshit. and that's why there's cool groups like the National Laywers Guild that helps stop it.

Posted by: monica at September 26, 2004 01:38 PM


I would be delighted to debate the Niederer case with you. I think you may have missed my original post on the topic, however, which may have caused a bit of a misunderstanding. My original post looked into the facts and law of the Niederer arrest; it concluded that there are several important reasons to question Maureen Dowd's allegation that Neiderer was arrested for the content of her speech. That original post is available here:

My post suggesting in passing that the Niederer case "looks kind of bogus" was intended to be read in light of that original post. My point was that, in light of the law and facts explored in my original post, the claims of 1st Amendment violations appeared quite weak in the Niederer case (but not in some other cases, which was the point of that post). You're right that the mere fact that the charges were dismissed does not make the Niederer case "kind of bogus," but I never meant to suggest that it did. The post noting that the charges were dismissed was quite clearly labeled as an update to the original post.

Orin Kerr

Posted by: Orin Kerr at September 26, 2004 01:56 PM

Professor Kerr: My apologies. You're absolutely correct: I didn't track all the way back to your original post, which contains a thorough examination of the facts and the law involved. I agree w/your contention that Ms. Dowd played a bit fast and loose w/her charges. The other case you mentioned may have much more merit, so perhaps that's where I should invest my outrage. Still, even w/all the details you uncovered about the Neiderer case, I'm reluctant to say that this is the kind of control over public expression we should accept in this country. I look forward to looking closer at the first amendment later this semester; perhaps then I'll have a better understanding of the "balancing" that seems required here.

Posted by: ambimb at September 26, 2004 03:02 PM

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