    CONTROLLING PUBLIC PROTEST: FIRST AMENDMENT IMPLICATIONS

                               By

                   Daniel L. Schofield, S.J.D.
                          Special Agent
                           Unit Chief
                     Legal Instruction Unit
                           FBI Academy


     The Supreme Court has indicated that in the context of
protests, parades, and picketing in such public places as streets
and parks, "...citizens must tolerate insulting, and even
outrageous, speech in order to provide adequate breathing space
to the freedoms protected by the First Amendment." (1) Police
face difficult constitutional and operational issues when tasked
with the dual responsibility of maintaining public order and
protecting the first amendment rights of protestors and marchers.
This article discusses recent court decisions concerning the
constitutionality of permit requirements and injunction-based
restrictions that limit the time, place, and manner of expressive
activity in public places. 

     Three general first amendment principles guide departmental
decisionmaking in controlling public protest. First, political
speech in traditional public forums, such as streets and parks,
is afforded a very high level of first amendment protection, and
blanket prohibitions of such speech are generally
unconstitutional. Second, reasonable time, place, and manner
restrictions on such speech are permissible if they are
content-neutral, narrowly tailored to serve substantial
government interests, and leave ample alternative ways for the
speech to occur. Third, speech or expressive conduct can be
restricted because of its relationship to unlawful conduct, such
as disorderly conduct or trespass.

CONTENT-NEUTRAL PERMIT REQUIREMENTS

     The first amendment permits the government to impose a
permit requirement for those wishing to engage in expressive
activity on public property, such as streets, sidewalks, and
parks. (2) Any such permit scheme controlling the time, place,
and manner of speech must not be based on the content of the
message, must be narrowly tailored to serve a significant
governmental interest, and must leave open ample alternatives for
communication. (3) The Supreme Court has held that any permit
regulation that allows arbitrary application is "...inherently
inconsistent with a valid time, place, and manner regulation
because such discretion has the potential for becoming a means of
suppressing a particular point of view." (4)

     The Supreme Court has ruled unconstitutional permit schemes
that vest government decision-makers with uncontrolled discretion
in deciding whether to issue a particular permit. (5) Ideally, a
permit scheme should include: 

     1)   A written description of the permit/license application
          process 

     2)   Comprehensive and unambiguous standards for
          implementation and the objective criteria officials
          will use in determining whether to grant or deny a
          permit application 

     3)   A time frame for the application process and for
          decisionmakers to consider an application

     4)   A provision for notifying the applicant that a permit
          request has been denied and the reasons for the denial

     5)   An established route to appeal a denial of an           
          application 

     6)   Language that avoids inherently vague terms, the
          meaning of which are not self-evident or easily
          discernible, such as "first amendment activities,"
          "special or unique circumstances," "unique hardship,"
          "public nuisance," or "detrimental to public health and
          safety," and 

     7)   The identity of the person or persons with the
          authority to grant or deny a permit request.

     A permit process must be narrowly tailored to serve
significant government interests. For example, a Federal district
court ruled unconstitutional a city's refusal to grant permission
for a nonprofit organization to set up portable tables at
particular locations on the public sidewalks of the city's
commercial and historic district. The nonprofit organization
intended to distribute literature, discuss issues of spiritual
ecology, and sell T-shirts carrying messages related to the
organization's religious tenets. (6) The court said the lack of a
coherent permit scheme, narrowly tailored to serve city
interests, gave the city unbridled discretion to grant or deny a
request. (7)

     However, the court suggested the first amendment would
permit the city to use narrowly tailored regulations to minimize
interference with pedestrian movement on crowded sidewalks, such
as established times for such activity and limitations on the
size and precise positioning of the tables. (8) Moreover, the
city's legitimate interest in preserving the character and
appearance of its historic district might justify restrictions,
if the city's permit scheme has content-neutral standards
narrowly tailored to serve that objective and the city proves
that its aesthetic concerns are sufficient to warrant the
abridgment of first amendment rights. (9)

RESTRICTIONS BASED ON THREAT OF VIOLENCE

     The U.S. Court of Appeals for the District of Columbia
stated in Christian Knights of KKK v. District of Columbia (10)
that when using a public forum, "...speakers do not have a
constitutional right to convey their message whenever, wherever
and however they please." (11) Accordingly, the government may
regulate a marcher's use of the streets based on legitimate
interests, such as: 1) Accommodating conflicting demands by
potential users for the same place; 2) protecting those who are
not interested onlookers, like a "captive audience" in a
residential neighborhood, from the adverse collateral effects of
the speech; and 3) protecting public order.

     The court emphasized that a permit process cannot be used to
"...impose even a place restriction on a speaker's use of a
public forum on the basis of what the speaker will say, unless
there is a compelling interest for doing so, and the restriction
is necessary to serve the asserted compelling interest." (12) The
court ruled the city's denial of a permit request from the Ku
Klux Klan to march 11 blocks and the resulting decision to limit
the march to only 4 blocks was unconstitutionally based on
anticipated listener reaction, which turns on the group marching,
the message of the group, and the extent of antagonism, discord,
and strife the march would generate. (13)

     However, the court also held that a restriction based on the 
threat of violence could be constitutionally justified if that
threat of violence is beyond reasonable control of the police.
The court noted:

     "[W]hen the choice is between an abbreviated march or a
     bloodbath, government must have some leeway to make
     adjustments necessary for the protection of
     participants, innocent onlookers, and others in the
     vicinity...Regardless of the Klan's message, and its
     opinion of the precise route needed to express it, some
     governmental interests are weighty enough to justify
     restrictions on speech in a public forum--particularly
     restrictions, like this one, that limit but do not ban
     or punish a march, and indeed allow use of a
     significant segment of the street requested." (14)

Nonetheless, because of conflicting police testimony and
evidence, the court concluded the threat of violence posed by the
proposed Klan march was not beyond reasonable police control and
that the restriction therefore violated the first amendment. (15)

     A court-ordered weapons ban at a particular Klan rally site,
based on the threat of violence and the stated intention and
practice of the Klan to bring firearms to their rallies, may
justify police conducting general magnetometer searches of
persons and packages at that site without regard to standards of
reasonable suspicion or probable cause. However, mass pat-down
searches of persons entering the rally sites would likely violate
the fourth amendment. (16)

SUPREME COURT REJECTS PERMIT FEE BASED ON LISTENER REACTION

     To what extent can the government assess fees and costs for
the issuance of a permit authorizing expressive activity in a
public forum?  In Forsyth County, Georgia v. The Nationalist
Movement, (17) the Supreme Court ruled unconstitutional a parade
ordinance that permitted a government administrator to vary the
fee for assembling or parading to reflect the estimated cost of
maintaining public order. The Court said that a $1,000 cap on the
parade permit fee did not render the otherwise invalid ordinance
constitutional. Specifically, the Court noted that there were no
articulated standards, either in the ordinance or in the county's
established practice, to guide the decision of how much to charge
for police protection or administrative time--or even whether to
charge at all. (18) Not only was there a possibility of
censorship through such uncontrolled discretion, but the county's
fee also often depended "...on the administrator's measure of the
amount of hostility likely to be created by the speech based on
its content." (19)

     While those wishing to express views unpopular with
bottle-throwers might have to pay more for their permit, the
Court noted the county did not even charge for police protection
for 4th of July parades, which drew large crowds that required
the closing of streets. (20) The Court concluded the county
imposed a fee only when it became necessary to provide security
for parade participants from angry crowds opposing their message
and that listener's reaction to speech is not a content-neutral
basis for assessing a permit fee. (21)

PERMISSIBLE FEES AND COSTS

     The Supreme Court in Forsyth County did not decide whether
only nominal charges are constitutionally permissible, but four
Justices agreed in a dissenting opinion that the Constitution
does not limit a parade permit fee to a nominal amount and
permits a sliding fee to account for administrative and security
costs. (22) In that regard, lower courts have upheld the practice
of assessing permit fees in accordance with projected police
expenses if certain conditions are met.

     For example, a Federal district court upheld the Kansas City
Police Department's policy of requiring parade sponsors to pay
for the cost of traffic control. (23) The court concluded the
department's extensive list of factors used to project associated
police costs were content-neutral, with the exception of a "crowd
control" factor, which the court said was unconstitutional and
needed to be severed from the otherwise constitutional policy.
(24)

     Similarly, the U.S. Court of Appeals for the Sixth Circuit
upheld a Columbus, Ohio, ordinance that required prepayment of an
$85 fee for the cost of processing a parade permit application
and prepayment of the cost for traffic control. The court ruled
that the ordinance 1) did not permit speculation about the degree
of violence a parade may provoke; 2) provided protection for the
marchers without consideration of its cost; and 3) contained
objective standards related to traffic control and not related to
speculation about the potential for disturbances based on the
parade's content. (25)

     Precedential support for the assessment of costs also can be
found in a California appellate court decision upholding portions
of an ordinance that requires a parade permittee to reimburse the
city for, and pay in advance, an estimate of "all city
departmental service charges incurred in connection with or due
to the permittee's activities under the permit."  The ordinance
also requires that "if city property is destroyed or damaged by
reason of permittee's use, event or activity, the permittee shall
reimburse the city for the actual replacement or repair cost of
the destroyed or damaged property." (26)

     The court said the fees correspond to the size of the parade
and its impact on normal traffic and not the size of the crowd in
attendance. Also, the departmental service charge and cleanup
reimbursement requirements are textually tied to the activities
of the permittee itself and does not purport to impose
responsibility for the acts of others. (27)

     It is constitutionally significant that in all the above
cases upholding permit fees and costs, indigent groups unable to
pay the fees were not precluded from engaging in expressive
activity, because an alternative forum was available. For
example, sidewalks were free for conducting a parade because
traffic control was not affected and parks were available without
cost for related speech activities.

INJUNCTION-BASED RESTRICTIONS

     Injunction-based restrictions on expressive activity may be
a viable and operationally effective option for law enforcement
to maintain public order. In Madsen v. Women's Health Center,
Inc., (28) the Supreme Court reviewed an injunction entered by a
Florida State court that prohibited anti-abortion protestors from
demonstrating in certain places and in various ways outside a
health clinic that performs abortions. The protestors were
enjoined from blocking or interfering with public access to the
clinic and from physically abusing persons entering or leaving
the clinic. 

     However, the protestors continued to impede access to the
clinic by congregating on the paved portion of the street leading
to the clinic and by marching in front of the clinic's driveways.
(29) As vehicles heading toward the clinic slowed to allow the
protesters to move out of the way, "sidewalk counselors" would
approach and attempt to give the vehicle's occupants anti-
abortion literature. The number of people congregating varied
from a handful to 400, and the noise varied from singing and
chanting to the use of loudspeakers and bullhorns. Protesters
also picketed in front of clinic employees' residences. 

     Because of this conduct, the Florida court issued an amended
injunction which, inter alia, excluded demonstrators from a
36-foot buffer zone around the clinic entrances and driveway and
the private property to the north and west of the clinic. The
injunction also restricted excessive noisemaking within the
earshot of, and the use of "images observable" by, patients
inside the clinic, prohibited protesters within a 300-foot zone
around the clinic from approaching patients and potential
patients who do not consent to talk, and created a 300-foot
buffer zone around the residences of clinic staff.

     The Supreme Court concluded that injunction-based
restrictions must burden no more speech than necessary and that
an injunction regulating a particular group's activities that
express a particular viewpoint is not impermissibly content-based
when premised on the group's past illegal or inappropriate
actions. (30) Because all injunctions, by their very nature,
apply to particular groups or individuals, the Court said the
test for determining content-neutrality is whether the
government's purpose in regulating the speech is without
reference to its content. (31)

     The Court held that injunctions carry greater risks of
censorship and discriminatory application than generally
applicable statutes and ordinances and that content-neutral
injunctions must therefore be evaluated under a somewhat more
stringent test to determine if "...the challenged provisions of
the injunction burden no more speech than necessary to serve a
significant government interest." (32) The Court then determined
the constitutionality of the injunction's buffer zones, noise
restrictions, ban on the display of signs and visual images, and
restriction on residential picketing.

BUFFER ZONES

     The Supreme Court upheld a 36-foot buffer zone around the
Florida abortion clinic's entrances and driveway, finding it
burdened no more speech than necessary to accomplish the
governmental interest in protecting unfettered ingress to and
egress from the clinic and because it ensured that traffic would
not be blocked. (33) The Court concluded this buffer zone also
was justified by the failure of the earlier injunction to
accomplish its purpose of protecting access to the clinic.

     Conversely, the Court said that a portion of the 36-foot
buffer zone that extended to private property on the back and
side of the clinic was unconstitutional because it burdened more
speech than necessary to protect access to the clinic. (34)
Because there was no evidence that the protestors had ever used
the private property to obstruct access to the clinic, the Court
found that this portion of the buffer zone did not serve a
significant government interest.

     The Supreme Court also held unconstitutional a buffer zone   
provision that ordered protestors to refrain from physically
approaching any person seeking services of the clinic, unless
such person indicates a desire to communicate in an area within
300 feet of the clinic. While the stated purpose of this
restriction was to prevent clinic patients and staff from being
"stalked" or "shadowed" as they approached the clinic, the Court
said a prohibition on all uninvited approaches, regardless of how
peaceful the contact may be, burdens more speech than necessary
to prevent intimidation and to ensure access to the clinic. (35)
The Court found this ban on all uninvited approaches
unconstitutional "...absent evidence that the protesters' speech
is independently proscribable (i.e., "fighting words" or
threats), or is so infused with violence as to be
indistinguishable from a threat of physical harm." (36)

     Using a similar rationale, the Supreme Court of New Jersey
held an injunction provision creating a buffer zone was too
broad-based on an insufficient history of threats and
intimidation. (37) Rather than prohibiting all expressional
activities on the sidewalk directly in front of the medical
center, the court said the injunction should have allowed a
limited, controlled form of expression near the entrance, while
restricting the troublesome mass of protestors to a location
across the street. The court said the injunction should give
consideration to the right of protestors to make their presence
known and to the role of sidewalk counseling in that process,
while at the same time protecting against any harassment of the
patients or others who wish to enter the clinic.

     Nonetheless, a history of intimidation by a particular group
may justify a restrictive buffer zone. For example, the
California Supreme Court upheld an injunction provision creating
a "clear zone" that effectively barred anti-abortion protestors
from the public sidewalk in front of a clinic by requiring that
all picketing, demonstrating, or counseling take place on the
public sidewalk directly across the street. (38) The court said
the restriction was justified based on the group's history of
intimidation and the fact that the first amendment does not
guarantee the right to a captive audience.

NOISE RESTRICTIONS

     The Supreme Court in Madsen upheld a portion of the
injunction that restrained the protestors from singing, chanting,
whistling, shouting, yelling, and using bullhorns, auto horns, or
sound amplification equipment within earshot of the patients
inside the clinic during the hours of 7:30 a.m. through noon on
Mondays through Saturdays. Noting the importance of noise control
around hospitals and medical facilities during surgery and
recovery  periods, the Court found the noise restriction burdened
no more speech than necessary to ensure the health and well-being
of the patients at the clinic. The Court noted that patients
should not have to "...undertake Herculean efforts to escape the
cacophony of political protests." (39)

     Other courts have upheld disorderly conduct prosecutions for
unreasonable noise based on the government's broad powers to
protect citizens from unwelcome noise. This can extend to any
situation in which individuals cannot escape bombardment of their
sensibilities and which substantially threatens their privacy
interests. (40)

BANS ON THE DISPLAY OF SIGNS AND VISUAL IMAGES

     The Supreme Court in Madsen ruled unconstitutional a
provision in the injunction that prohibited protestors from using
images observable to patients inside the clinic during the hours
of 7:30 a.m. through noon on Mondays through Saturdays. The Court
suggested the first amendment would not be violated by an
injunction-based prohibition on the display of signs that could
be interpreted as a threat or veiled threat to patients or their
families. However, the Madsen injunction's broad prohibition on
all "images observable" burdens more speech than necessary to
achieve the purpose of limiting such threats. (41) If the purpose
is to reduce the level of anxiety and hypertension suffered by
patients who find the message expressed in the placards
disagreeable, the Court distinguished the ban on signs from
restrictions on noise by noting that "...it is much easier for
the clinic to pull its curtains than for a patient to stop up her
ears." (42)

RESTRICTIONS ON RESIDENTIAL PICKETING

     The Supreme Court in Madsen ruled unconstitutional a
provision in the injunction that prohibited picketing within 300
feet of the residences of clinic staff. The Court said the
protection of residential privacy and tranquility is a legitimate
governmental interest of the highest order and affirmed its prior
decision upholding the constitutionality of an ordinance that
prohibited "focused picketing taking place solely in front of a
particular residence." (43)

     However, the Court found the 300-foot zone around residences
burdened more speech than necessary because it banned general
marching through residential neighborhoods or even walking a
route in front of an entire block of houses. (44) The Court
concluded that "...a limitation on the time, duration of
picketing, and number of pickets outside a smaller zone could
have accomplished the desired result." (45)

     A Federal district court ruled an ordinance could be
enforced to prohibit continuous picketing in front of a doctor's
home but not to prevent picketing in the doctor's neighborhood,
so long as the picketers did not picket in front of the doctor's
home or the two homes on either side of the doctor's home. (46)
The court noted sympathetically that police need bright-line
standards to help them enforce such ordinances that raise
difficult first amendment issues.

CONCLUSION

     The Supreme Court has interpreted the first amendment as     
creating a "...profound national commitment to the principle that
debate on public issues should be uninhibited, robust and
wide-open." (47) Law enforcement often has the responsibility of
balancing the legitimate need to maintain public order with the
important interest in protecting first amendment rights. 

     Because the legality of the various enforcement options
discussed in this article depends on a complex and fact-specific
analysis, law enforcement decisionmakers should obtain competent
legal review of any proposed restriction on expressive activity.
In that regard, a particular group's past violent or disruptive
conduct should be carefully documented because it is relevant to
this analysis. Finally, it is recommended that officers receive
legal training on the basic principles of first amendment law
before being assigned the difficult task of controlling public
protest.


ENDNOTES

     (1)  Boos v. Barry, 485 U.S. 312, 322 (1988).

     (2)  See Cox v. New Hampshire, 319 U.S. 569, 574 (1941).

     (3)  See United States v. Grace, 461 U.S. 171, 177 (1983).
See also, Rubin v. City of Santa Monica, 823 F.Supp. 709 (C.D.
Calif. 1993) and Paulsen v. Lehman, 839 F.Supp. 147 (E.D.N.Y.
1993).

     (4)  Heffron v. International Society for Krishna
Consciousness Inc., 452 U.S. 640, 649 (1981).

     (5)  See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965).

     (6)  One World One Family Now v. City of Key West, 852
F.Supp. 1005 (S.D. Fla. 1994).

     (7)  Id. at 1011.

     (8)  Id.
     
     (9)  Id. at 1012.

     (10)  972 F.2d 365 (D.C. Cir. 1992).

     (11)  Id. at 372.

     (12)  Id.

     (13)  Id. at 373-74.

     (14)  Id. at 374-75.

     (15)  Id. at 375-76.

     (16)  Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987),
cert. denied, 108 S.Ct. 1593 (1988); Wilkinson v. Forst, 717 F.
Supp. 49 (D. Conn. 1989).

     (17)  112 S.Ct. 2395 (1992).

     (18)  Id. at 2403.

     (19)  Id.

     (20)  Id. at 2404 n.12.

     (21)  Id. at 2403.

     (22)  Id. at 2406 (Chief Justice Rehnquist dissenting).

     (23)  Gay and Lesbian Services Network, Inc. v. Bishop, 841
F.Supp. 295 (W.D. Mo. 1993).

     (24)  Id. at 296.

     (25)  Stonewall Union v. City of Columbus, 931 F.2d 1130
(6th Cir. 1991), cert. denied, 112 S.Ct. 275.

     (26)  Long Beach Lesbian & Gay Pride v. Long Beach, 17
Cal.Rptr.2d 861 (Cal. App. 2 Dist. 1993).

     (27)  In Pritchard v. Mackie, 811 F.Supp. 665 (S.D. Fla.
1993), the court held that a requirement for the Klan to obtain a
$1 million liability policy before it could receive a rally
permit violated the first amendment.
     
     (28)  114 S.Ct. 2516 (1994).

     (29)  Legal scholars disagree regarding the
constitutionality of the recently enacted Freedom of Access to
Clinic Entrances Act (FACC). See, e.g., Paulsen and McConnell,
"The Doubtful Constitutionality of the Clinic Access Bill," 1
Va.J.Soc.Pol'y & Law 261-289 (1994); and Tribe, "The
Constitutionality of the Freedom of Access to Clinic Entrances    
Act of 1993," 1 Va.J.Soc.Pol'y & Law 291-308 (1994).

     (30)  114 S.Ct. at 2523-24.

     (31)  Id.

     (32)  Id. at 2525.

     (33)  Id. at 2527.

     (34)  Id. at 2528.

     (35)  Id. at 2529. In Sabelko v. City of Phoenix, 846
F.Supp. 810 (D. Ariz. 1994), the court ruled unconstitutional an
ordinance that effectively rendered sidewalk counseling, whether
peaceful or not, dependent on the subjective reaction of the
person approached.

     (36)  Id.

     (37)  Horizon Health Center v. Felicissimo, 638 A.2d 1260
(Sup. Ct. N.J. 1994).

     (38)  Planned Parenthood Shasta-Diablo, Inc. v. Williams,
873 P.2d 1224 (Sup. Ct. Cal. 1994).
     (39)  114 S. Ct. at 2528.

     (40)  See, e.g., Ward v. Rock Against Racism, 109 S. Ct.
2746 (1989) and Price v. State, 622 N.E.2d 954 (Sup. Ct. Ind.
1993).

     (41)  114 S. Ct. at 2529.

     (42)  Id.

     (43)  Id. at 2529-30. See also, Frisby v. Schultz, 108 S.Ct.
2495 (1988).

     (44) Id. at 2430.

     (45) Id.

     (46)  Vittitow v. City of Upper Arlington, 830 F.Supp. 1077
(S.D. Ohio E.D. 1993).

     (47) New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964).
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