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CounterInaugural Constitutional Issue
A.N.S.W.E.R. (Act Now to Stop War & End Racism), one of the big anti-war organizers, applied for a permit to occupy space along the route of the presidential inaugural parade on January 20th, but apparently the National Park Service is stalling on that permit. According to A.N.S.W.E.R., the Park Service is giving permits to Bush supporters first, and if there's anything left over at the end, maybe protesters will get it. Hmm. Sounds like a bit of a problem with “constitutionalizing the gatekeeper,” meaning making sure that the permit process is fair, equitable, and consistent with the demands of the First Amendment. According to “Constitutional Law in a Nutshell (Nutshell Series)” by Jerome A. Barron, C. Thomas Dienes, “[b]road delegations of authority, even when cast as content-neutral, indirect controls, invite censorship of unpopular views” (427). I wonder if A.N.S.W.E.R. will be able to argue that the National Park Service has an overly broad authority in the protest permit process, and that by denying protesters permits while granting permits to supporters, the Park Service is censoring “unpopular” views. (Putting aside for the moment that some 49% of the country voted against Bush, which hardly makes expression of protest against Bush “unpopular.”) In City of Lakewood v. Plain Dealer Publishing Co. (1988), the Supreme Court said that “a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” (Barron 428). Here, it appears (from the little I know) that A.N.S.W.E.R. could bring an “as applied” challenge to whatever permitting statutes or procedures the Park Service is supposed to follow, arguing that, regardless of how those rules are worded, they give the Park Service substantial power to discriminate, as applied. Of course, by the time such a legal claim came before a court, the inauguration might be long over, so this strategy may be pointless. And I'm sure A.NS.W.E.R.'s lawyers know all of this much better than I do, and I'm sure they know even better strategies for challenging the permit process. I'm just saying, maybe I learned something this semester after all. Maybe.Posted December 18, 2004 08:26 AM | election 2004 law general
we had similar problems in Boston this summer at the DNC. we thought they had given permits to right-wing groups. but then it really turned out that they hadn't given any at all. so maybe that's the case, and the right-wingers are just lying.
Posted by: monica at December 18, 2004 09:18 AM
The access issues are important, and I don't trust this administration to not clamp down those who disagree with its policies.
But be careful about holding up A.N.S.W.E.R. as the epitome of progressive thinking. I went to a huge protest of theirs once, just before the war in Iraq when ~100,000 people marched through the streets of San Francisco to a rally at the Civic Center. We came to lend our mighty presence against the imminent war, but at the rally we were instead regaled with an anti-semitic attack against Israel. That our tremendous turnout now appeared to be supporting.
At best, it was a confusing of the issues counter-productive with making headway on the matter at hand.
It was also imbalanced and inaccurate, and full of hateful invective and uninformed bias against anyone Jewish. Even the thousands and thousands who were there in attendance, committed to the cause of peace.
It was so clever of them, to use a rally where everyone in attendance was attuned to nodding affirmatively and saying "Amen" to every cheer that was led, and then using that momentum to trick people into cheering for their anti-semitic rhetoric.
We need more protests against the war, and more demonstrations for peace. But we should not be lending A.N.S.W.E.R. the legitimacy of organizing them. They're little more than a hate group in disguise.
Posted by: Cathy at December 18, 2004 10:04 AM
Definitely content-based discrimination. A viable challenge if ANSWER can get into court.
Posted by: Jennifer at December 18, 2004 10:09 AM
"Of course, by the time such a legal claim came before a court, the inauguration might be long over, so this strategy may be pointless. . . . I’m just saying, maybe I learned something this semester after all. Maybe."
You may have learned something in Con Law, but you seemed to have forgotten about Civil Procedure --- it's called a TRO. It's quite common in these type of short-timed situations. When you practice and/or clerk, you'll become familiar with the procedure. . . .
Posted by: civ pro at December 19, 2004 01:57 AM
Poor ANSWER. I feel so awful that those Commie pricks are being denied the right to cause needless havoc with little inconvenience. Boo hoo.
Posted by: Brian at December 19, 2004 03:15 AM
