What Price Would You Pay For Your First Amendment Rights?

Respectfully submitted by Lawrence Rafferty (rafflaw)-Guest Blogger

I have watched the Occupy Wall Street marches and protests and the recent protests in Wisconsin and Ohio with great interest.  In my opinion, these protestors are on the front line in the battle to protect our First Amendment rights.  As we have seen, some of them have paid a heavy price when they have been beaten and gassed and eventually arrested.  Some States and cities are now attempting to raise the cost of defending your First Amendment rights by charging protestors for the cost of police “protection” and the use of city services!  In Wisconsin, the embattled Governor, Scott Walker, has issued new rules that may actually take this trend of restricting our First Amendment rights to a new low. 

“Gov. Scott Walker’s administration could hold demonstrators at the Capitol liable for the cost of extra police or cleanup and repairs after protests, under a new policy unveiled Thursday.  The rules, which several legal experts said raised serious free speech concerns, seemed likely to add to the controversy that has simmered all year over demonstrations in the state’s seat of government.  The policy, which also requires permits for events at the statehouse and other state buildings, took effect Thursday and will be phased in by Dec. 16. Walker administration officials contend the policy simply clarifies existing rules.  State law already says public officials may issue permits for the use of state facilities, and applicants “shall be liable to the state . . . for any expense arising out of any such use and for such sum as the managing authority may charge for such use.” But Edward Fallone, an associate professor at Marquette University Law School, said the possibility of charging demonstrators for police costs might be problematic because some groups might not be able to afford to pay.  ‘”I’m a little skeptical about charging people to express their First Amendment opinion,” he said. “You can’t really put a price tag on the First Amendment.”‘  Journal Sentinel

I don’t think anyone would have a problem with normal and reasonably enforced permit laws and restrictions, but the purpose of these new rules in Madison seem intended to thwart and prevent Wisconsin residents from exercising their First Amendment rights.  Just what do these new regulations from the Walker Administration say?

According to the linked Journal Sentinel article,  “The policy says:  Groups of four or more people must obtain permits for all activity and displays in state buildings and apply for those permits at least 72 hours in advance. The policy requires permits for 100 or more people outside the Capitol. The policy does provide some leeway for spontaneous gatherings triggered by unforeseen events.   Groups holding demonstrations could be charged for the costs of having extra police on hand for the event. Costs associated with a counterprotest could be charged to that second group. The costs would be $50 per hour per Capitol Police officer – costs for police officers from outside agencies would depend on the costs billed to the state. The police could require an advance payment as a requirement for getting a permit and also could require liability insurance or a bond.  Demonstrators may not tape or stick signs to Capitol walls not intended for signs. During the protests hundreds of signs were posted at the Capitol.   Any damage or cleanup after a demonstration could be charged to organizers. During the court fight earlier this year over access to the Capitol, Walker’s administration said the demonstrators had done $7.5 million in damage to the building with the signs and other wear and tear. But almost immediately the administration sharply backpedaled from that claim, conceding the damage was significantly less.”

If I read these regulations correctly, holding citizens responsible for a $50.00 per hour charge, per officer, is a blatant attempt to restrict and throttle free speech in Wisconsin.  This type of restrictions makes the so-called “Free Speech Zones” look positively progressive!  In fairness to Governor Walker, he is not the only public official trying to force citizens to “pay” for their right of free speech.  In Nashville, Tennessee, the State Department of General Services billed the Occupy Nashville organization $1,045 for the use of two state troopers for security!  “The state Department of General Services billed Occupy Nashville $1,045 to provide two troopers for security the night before they began arresting the protesters and clearing their encampment.  The invoice was part of a public records request to the department from The Associated Press.  Protester Dorsey Malina said she was one of a group that met with General Services Commissioner Steve Cates on Oct. 26 over their concerns about security on the plaza.  There is some disagreement about what happened at that meeting. Malina said a trooper who had been making the rounds of the plaza at night suddenly stopped showing up and protesters wanted to know why.  They were told the state could not police their encampment and they would have to pay for security, she said.”  Knoxnews

The amazing part about this incident is that the protestors in Nashville agreed to pay for the State Troopers, but the next day the State installed a curfew and went about evicting the protestors!  I guess even when you pay for your right to express your First Amendment rights, it is not good enough for the State of Tennessee.  Lest we forget what rights the First Amendment confers upon us all here it is:  ”  Amendment I     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”  Cornell  I think we need to ask the Originalists just where in the Constitution and its First Amendment does it say that Cities and States can charge taxpayers for exercising this all important right?

Over the years, some of our finest have sacrificed their lives for the First Amendment and the rest of our freedoms.  Now, certain Governors and State officials are asking citizens, including Veterans who have fought to protect those freedoms,  to pull our their checkbooks before they express their right of Free Speech or before they exercise their right to peaceably assemble to address their grievances with the Government.   Don’t our taxes already pay for these services?  Won’t these restrictions actually dilute our First Amendment rights?  Is there a balance between free speech and the costs to reasonably control and protect crowds that can be reached without harming our Free Speech rights?  If this type of restriction to the First Amendment is allowed to stand, should we just consider that the Bill of Rights is only nine Amendments strong?

Just how valuable is your right of Free Speech to you?



54 thoughts on “What Price Would You Pay For Your First Amendment Rights?

  1. Very timely piece rafflaw!

    I just did one after collecting some information and reading some cases.

    The binding of free speech with free press is an interesting phenomenon.

    Professor Turley had a good post on this recently.

    In that post today I put up a video of a guy who is facing 75 years in prison for doing what the professor said was a right, which was supported by adequate case law.

    It goes easier when one is exercising the first amendment as a citizen journalist as it turns out, because it invokes free speech and free press.

    Blogs are doing journalism.

  2. You say “I don’t think anyone would have a problem with normal and reasonably enforced permit laws and restrictions”

    I do. Free speech cannot be impaired until and unless there is a clear and present danger, or whatever the reformulation now is.

    The founders realized that many governments suppress “complainers”, and decided that our government will not be that way. As JFK said in 1962, those who make peaceful revolution impossible make violent revolution inevitable.

    The Hancock 38 were just found guilty of violating there permit by 15 minutes, which proved a mens rea to block traffic, of which there was none.
    The judge viewed this as street theatre.


  3. Dred, you say “The binding of free speech with free press is an interesting phenomenon.”

    These two are the same – the right to communicate ideas. In one case using ounds, in the other case using letters or symbold – symbolic speech. And the court has extended it to other symbols besides letters – black armbands, waving the flag or burning it.

    It is not freedom of the commercial press any more than freedom of commercial speech. It is freedom of the printing press, the xerox, the spray can.

  4. rafflaw 1, December 4, 2011 at 2:48 pm

    Thanks Dredd. It is an important issue, especially in light of the attempts at restricting the First Amendment right to peaceably assemble.
    So true.

    We had some fine forefathers who somehow saw that these issues, peaceable assembly to petition for a redress of grievances, which is coming together to speak our minds and feelings freely, and the right to tell everyone we did so and/or that others did so, all fits together in the puzzle of true freedom, true human rights, expressed in that wonderful First Amendment.

    If we did not have citizen journalists who are doing that, the for-profit corporate press might succumb to the powers of tyranny, and our country could be left out in the cold.

    Thanks to all the citizen journalists who post and comment on this and other blogs, because that is all part of the true free press.

  5. martingugino 1, December 4, 2011 at 3:12 pm

    Dred, you say “The binding of free speech with free press is an interesting phenomenon.”
    I agree with your comment.

    That section of my comment was in the context of the bunching of certain rights together in an amendment, by our forefathers, compared with separating them from other amendment subject matter.

    If you read the post on my blog, rafflaw’s discourse, and Professor Turley’s words of wisdom, together with the comments bloggers here, including you, make, you see that our forefathers knew freedom and tyranny very well, and that bloggers here tend to understand that.

    The icing on the cake is that millions upon millions of our brethren do to!

  6. The excessiveness of first amendment disenfranchisment enforcement will be the ultimate downfall of the folks enforcing it…. We will soon have standing army’s with the ready reserves readily available. Oh yeah…. We’re not supposed to do that either….

    What’s interesting is the Russian constitution is basically like the US…. See where it took them….

  7. I remember in the 50’s how pundits would heap disdain on the USSR for its’ repression of free speech and the right to peaceably assemble. If I remember correctly more than four people was illegal. Are we now any different?

  8. Mike,
    In May of 1970, I was arrested for violating a city ordinance for being in a group of more tha Two people! I was acquitted, but the arrests did quell the protests

  9. Raff,

    In all the demonstrations I attended I was never once arrested. The only time I was, it was because of an unpaid ticket in Suffolk County, on Long Island. Perhaps at one point the right of protest was understood and then
    Nixon got elected and Kent State followed. It has never been the same since.

  10. rafflaw,

    I was a political prisoner too (First Amendment) … federal joint. Got pardoned by the President.


    In all the demonstrations I attended I was never once arrested

    Keep trying! 😉

  11. Dredd – thanks for your comments.
    You say “because that is all part of the true free press”.
    Excuse this, but I am compelled to agree strongly:
    Some have claimed that the press is the only business identified and protected in the Constitution. I also believe that many people reflexively think of the old picture of a reporter with the word “PRESS” stuck in his hatband, when thinking of the First Amendment.

    I so dislike that conception of the First Amendment, one that is undercut at least partially by Branzburg v. Hayes.
    I believe that the word “press” is not a case of a part standing for the whole, but is a case where the word used is exactly what is intended.

  12. In the OWS protests, police are not only ketteling protesters, but the press as well. Police in full riot gear are separating anyone with a video camera from the crowd, and then make sure they are obstructed from seeing what is going on as they make arrests. Reporters who have protested this treatment have been arrested as well, all on bogus made up charges that end up being dismissed. However, the damage to the First Amendment is already done.

    Here is a livestream account by Horace Boothroyd, III who managed to keep in touch with all kinds of people during yesterday’s protest in Portland. Horace has been tireless in scavenging news, doing far more than the mainstream press.


  13. Who is going to determine how many police will be needed for each protest/demonstration? What if someone other than a protester/demonstrator causes damage to public property or leaves trash around? Looks like Walker and the Republicans of Wisconsin are trying hard to silence the free speech of its citizens. I think they’d sell their souls to thwart their political foes.

  14. welcome to the world of the middle class where you don’t have First Amendment rights are whistleblower laws to protect you . when a single mother working for a state courts system can be railroaded ,loss of 4 year degree 7 years working as pretrial officer because she told what was going on in her department. noway can she file a law suit making $30K a year.would you like to here the tape recording? demactivist007 at gmail

  15. I was never arrested but only because I ran like hell … I do have scars on my scalp from cigarette burns trying to protect the children marching with me during a civil rights protest … in that case I didn’t run of course.

    It’s never easy.

  16. Blouise,
    It is never easy to buck the establishment, even when it is the right thing to do If we do not start taking back or government, we will not have the right to write blogs like this

  17. “Blouise,
    I ran like hell too, but I ran into a high fence with three people climbing over in front of me!” (raff)

    It was probably the band from Animal House :)

  18. Several years ago I realized that I was probbly the only person I know who has REAL first amendment rights, because I have NOTHING anybody can take from me! I own nothing, have a laughably tiny income, have nothing that can be taken from me (yeah they took my first-born son long ago but he came back when he was emancipated) so I can say what I want to say. Could somebody pepper-spray me? Sure, but they can anyway. Could somebody taser me? Sure, but they could anyway. People who lie can do anything they want to you because they will just lie about what happened.

    So freedom’s just another way to say “nothing left to lose.”

    From here, it looks to me like finally our country is SAYING OUT LOUD that it is dfoing what I have known for a long time it was doing. Glad somebody notices now that the victims are more vocal and more visible.

  19. Id like to put this click on my FB page. Is that ok?
    (I am amazed at some of the ‘kids” with whom I went went to school who found me on FB and are arch, very arch conservatives who think the repubs and the loss of some of our rights is ok (one guy went to Annapolis, although that would make him more right leaning (probably) he is a fox news believer. How can someone so smart be so dumb? but that is a question for some other post.)

  20. Carol,
    I have friends also who are very right wing, notwithstanding the facts when presented to them. They prefer to bury their heads in the sand and keep buying more guns.

  21. Providing advance notice of peacful protest (via permitting) is a PRIVILEGE enjoyed by local authorities. Like so many aspects of law, privileges must serve a clear benefit to society, lest that privilege be discarded.

    The purpose of requiring permits for protests is to provide authorities the necessary lead time to schedule manpower and physical resources to handle the temporary extra workload. The idea is that, since protest organizers already have considerable lead time, they can easily share that lead time with authorities. This allows municipalities to manage their costs, improve safety for protestors and spectators, and protect private property that may come into harms way.

    However, if denial of permits, or excessive “fees” (aka fines) are used to obstruct or prevent protests, then protest organizers are well within there rights to protest this outrage as well, and refuse to honor the permitting process.

    Like all legal privileges, when it gets abused it ceases to provide society with a real benefit, so it ceases to be offered. Isn’t this a common principle of legal theory? Help me here.

  22. Rafflaw, funny you should say that – one of them loves to put out fb messages about waiting excitedly for her concealed weapons permit (in Fla.) (altho she is not one of the smarter ones)

  23. Rafflaw, I tried to google sate law for carry, couldnt find one with just a luist but one guy wrote he can carry his licensed in his state concealed in 35 states. I had no idea.

  24. FYI, the number of unjustified shootings by persons with legal carry permits is so miniscule as to be statistically insignificant. As in single digits for the whole USA, per year. That applies only to those states which require training and background checks. All bets are off for states that might allow anyone to carry with few or no questions asked.

    Illegal weapons are a different story. For some reason, crooks do not bother with niceties such as obtaining permits.

  25. I have wondered since i was a student what would happen to our “Democracy” when a serious challenge came along. What if, for example a Nazi actually won the Presidential election. What would we do? Can the people of a democratic state vote to give power to a candidate who represents a party dedicated to the destruction of that same democracy?

    Secondly; our nation was founded on the priciple that the people have a God given right to overturn a tyranical government and replace it with one better suited to our needs and by just such an action. I always thought, “What the hell do you think our government is ever faced with this situation?”

    I think we are finding out. As I suspected, our government has reacted poorly; with less than what might be called restraint to simple requests for huge, billion dollar criminals to be held accountable for their rape of the American people and economy; a request you would think they should be all too happy to grant. One which we should never have to have made.

    What do you think these store window politicians are going to do when we tell them what we really want. Because let’s face it. OWS and their associated groups are way beyond political dispute with our nation. They are involved and rightfully so, in a philosophical dispute with our nation. But what they; we; are asking for is a discussion; not a dispute. Not with politicians but with America, (Details to be announced)

    I don’t think they will react well to this suggestion. Do you? What do you think? Discredit us and then set the dogs loose? Big Green Dogs with 80mm cannon?
    So…………….yeh………….I agree……….they are attacking our first amendment rights, and our second and fourth and…………………………………………..

  26. angryman, that is the reason the banksters and other criminal types who currently control the economy and political scene are soiling their drawers. They have called out the Brownshirts police to do their dirty work. And even though the Brownshirts police are part of the 99%, they are behaving like good little sheeple.

  27. http://peacefreedomprosperity.com/5618/federal-court-rules-videotaping-police-is-a-first-amendment-right/

    In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v.Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.”


  28. Great thread.

    I’m trying to find what limits the First Amendment imposes on the government’s ability to impose the costs of police protection on persons exercising their First Amendment rights.

    Anyone have thoughts on this?

  29. Greetings J. B,
    Listen; I’m just a Simple Country Philosopher and not; by the Grace of God; an Attourney. (Spectacles; Testicles: Wallet; and Watch).
    I am however possessed of the ability to read and comprehend English and the absolute audacity to consider that I might in a miracle of empathetic reasoning; be able to achieve a state of covalence with the esteemed crafters of our Bill of Rights.
    I say this not to insinuate that you are not possessed of those self same skills; rather to lay claim to those basic skills that the current breed of politician refuses to credit me with. Or you for that matter.
    Now as to the matter of the First:

    Amendment I
    Congress shall make no law respecting an establishment of religion, or
    prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Seems pretty clear to me that “NO law” means ‘NO law”.
    abridging the RIGHT of the people.
    As this is the peoples right; and may not be stopped; it then takes on the charactor of an act of God or an unstoppable force of nature. As such; any incidental damage is the unfortunate but unavoidable consequence of such an event and responsibility for said damage would then revert to the Homeowner’s or Commercial Insurance Policies of the individual property owner.
    If a legal mind superior to mine (say a first year Para-legal student with average grades) comes along and refutes my conclusions on the basis of prior legal precident or prior carnel knowledge or prior exposure to cotton candy;……..I won’t be surprized but even though that may happen; I am sticking my neck way out there for the amusement of the blood-thirsty mob and sticking to my opinion.

  30. Angryman – the standard reply is that no right is absolute – you heard Bloomberg use it before he cleared out OWS and trashed their property.
    And a typical question to you is “May a law which is not intended to abridge speech, abridge it as a side effect?” No bikes on the expressway means two bicyclists cannot converse on the expressway. What about no cell phones while driving, or while driving drunk? etc.

    The common formulation is “time place and manner” restrictions can be legal if applied indiscriminately (slight joke) and if they are the least restrictive way to achieve an important state interest.
    One example of an important state interest is if the language would create a “clear and present danger”, although this memorable phrasing has been tightened up somewhat to “immanent lawlessness” or some such, for embarrassing reasons.

    This is almost certainly not a completely accurate characterization of the state of the law, since the first amendment is constrained (at the moment) in an insubstantial way, the court has held, by Park Service Regulation 36CFR7.96 which says that a passersby must always have a substantially unobstructed view of the White House fountain from the sidewalk.

  31. Jonas B – good question: what limits are there on penalties?
    I think that the criminal penalties are defined in the law, and I don’t think the court can exceed those. Wouldn’t the city have to file a civil suit to recover the costs? Would the convict have to pay the salaries of the arresting officers, for the time and materials it took to arrest him? Could he supply his own handcuffs, since there would be an additional obligation to not imprudently spend money on the arrest.
    Seems like it would set up an unhealthy conflict of interest situation, and so be contrary to public policy.

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