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. 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.

  2. 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.

  3. 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?

    1. 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.

  4. Carol,
    thanks for the link. You are right that it is sick to think that the concept that corporations are people even needs to be discussed.

  5. 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.”


  6. 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.

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