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Friday, July 24, 2009

Five Recent Stories Illustrating “The Constitution In Our Midst” (the first in our series)

Perusing newspapers, magazines and websites, I came across several interesting stories, many of them underreported, describing ways in which the Constitution intersects with ordinary life. Over the next few days, I will be introducing them, one by one.

West Point Cleared of Wrong-Doing In Banning War Protests on Campus; Issue Involves “First Amendment Concerns”

The link below is to an AP story on this subject. It follows an incident in 2004 when protesters unfurled a banner at an Army basketball game and were promptly escorted out of the building and handed a five year ban on appearing on campus. A jury in the federal district court in White Plains, NY ruled this week that the Academy acted within its power. The West Point officials insisted that their ban on the display was not “content-driven” and that, in fact, it was the disruptive nature of the display – not its message – that prompted them to act. Attorney Michael Sussman, of Chester, NY, disagreed, noting that the Academy only adopted a policy banning protests in 2004 after this incident had taken place. He asked the judge to set aside the jury’s decision – which he is allowed to do – and issue a ruling on his own.

The case echoes another, also involving attorney Michael Sussman. In 2007, when then-Vice President Dick Cheney was scheduled to appear at West Point graduation ceremonies, Sussman filed a petition on behalf of protesters requesting an injunction to allow them on the grounds to denounce the vice president’s appearance. The district court ruled against them, citing the security concerns voiced by West Point officials as significant and “content neutral.” Appealed to the Second Circuit, the motion was again denied. The judges’ analysis, which you can read here is a careful piece of exposition on First Amendment doctrine.

The essential elements are these: If the Academy – or any military base, for that matter – was a “public forum,” then any speech restriction within its boundaries would be subject to heightened scrutiny. That is, you couldn’t stop the protesters from appearing there. But since the Academy is not a public forum – indeed, at the entrance gates you have to stop, show identification and announce your purpose for being there – restrictions on speech are subject to a lower standard of scrutiny, one in which the rule must only be deemed “reasonable” and “content-neutral.” That is, you cannot allow some protesters who speak one message, while denying other protesters who speak a different one, but with a reasonable argument (such as security of those attending the event) you can ban all of them.

Sussman made the argument that the appearance of Vice President Cheney – by virtue of his being a political figure – changed the tone of the event to something at least resembling a public forum, one where political speech – which has always been deserved the most protection – must by first amendment standards be allowed. But the Second Circuit judges didn’t buy it. They pointed out that Cheney was also an official of the United States government, second only to the Commander-in-Chief, and that the mere fact that he is also a politician does not change the nature of the venue.

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