Disentangling the Law of Public Protest
102 Pages Posted: 6 Sep 2012
Date Written: September 4, 2012
The purpose of this article is to alleviate the confusion that so frequently surrounds the law of public protest. Much of that confusion can be avoided, when analyzing a given case, by zeroing in on who is regulating the speech in question. There are four regulatory players, who act in four distinct settings: restrictions enacted by legislative bodies, the issuance of permits and fees by government administrators, speech-restrictive injunctions imposed by the judiciary, and the influence of police as a regulatory presence on the street. Discrete lines of precedent attend each of these players. Legislators and judges, for example, are governed by a different legal standard when they impose time, place, or manner restrictions on public protest. Administrators are governed by a special body of precedent when they issue permits for parades or demonstrations. And street-level decisionmaking by police is governed by yet another line of cases. Failure to distinguish among these four regulatory players, and failure to recognize the distinct bodies of precedent that have grown up around each of them, are salient causes for the confusion that so often plagues the law of public protest. Accordingly, this article is aimed at disentangling lines of precedent that are all too frequently entwined -- urging an analysis of public protest cases that distinguishes among the four regulatory players. Thus, this article devotes separate sections to the regulatory roles of legislators, administrators, judges, and police, with an introductory section on the doctrinal bedrock in this field: the public forum doctrine. To make this article especially useful to judges, lawyers, and scholars, I have labored to provide a wealth of factual detail for all of the cases to be found in my footnotes.
Keywords: Constitutional Law, First Amendment, Freedom of Speech, Public Protest, Public Forum Doctrine, Demonstrators, Protesters, Marchers, Picketing, Parades, Demonstrations, Heckling
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