Kathleen Stachowski Other Nations
Many decades have intervened since my First Amendment rights were trampled by the FBI. The year was 1970 and Richard Nixon was appearing at the Fort Wayne (IN) War Memorial Coliseum. A group of us from a small, nearby college with a long history of peace activism decided to take in the spectacle; I suppose our clothes and hair tipped off The Man that we weren’t enthusiastic supporters of the Viet Nam war. We were detained, our tickets confiscated “for verification” and never returned.
We were angry. We felt powerless. We returned to school and told our story. It found its way into the Peace Studies bulletin, and that was the end of it. Today, older and wiser and again confronted with a suspected infringement upon First Amendment rights, I knew exactly what to do: Contact the American Civil Liberties Union.
Getting the runaround at the Shrine Circus
The Shrine Circus arrives in Missoula, MT for five performances over two days in April. In 2012, a group of us–larger than any other circus outreach up until then–assembled at the Adams Center field house on the University of Montana campus. We were well over the required 100 feet from the entrance, lined up along a plaza-like area and well out of the flow of foot traffic (see picture above). Still, we were highly visible to everyone entering and could offer Break the Chain flyers to any takers. Adams Center officials told us we’d have to leave and stand in the Free Speech Zone elsewhere on campus–nowhere near the circus venue. We protested and were then told we needed a permit. Persistent if nothing else, we tracked down a university vice president; he kindly called in a permit. Campus police made it starkly clear that the Shriners were the paying customers, and we would be tolerated only as long as we complied with demands.
Fast forward to April 2013. Three weeks before the circus, I contacted the Adams Center to set the permit process in motion. “We’re prepared for you this year,” I was told. “We’ve designated a Free Speech Zone for you at the venue.” Cool! I imagined the same perfect location, but now with the First Amendment’s blessing. “Can we approach people to distribute fliers?” A rather reluctant “yes” was followed by, “as long as you don’t shove them in people’s faces.” I assured the administrator this would not happen.
When the day arrived, we found that our Free Speech Zone was far removed from our 2012 location; now we found ourselves well south of the main entrance, which circus-goers approached from the north and west. The required 100-foot mark was even behind a tree! We protested, and the boundary was moved up to just in front of the tree. Many of our signs were no doubt unreadable from our distant position on the grassy knoll, and only if they yelled could we hear the attendees tell us to “get a life.”
Not wanting to jeopardize our ability to deliver even a limited message, I entered the Adams Center to confirm what I had been told by the administrator about flyer distribution. But the rules had changed–handing out flyers couldn’t be allowed as this would impede foot traffic. Hmmm. It was looking more and more like the First Amendment–and even the Adams Center’s own policy–aren’t worth much when the circus comes to town.
Who ya gonna call? ACLU.
Feeling some of the same anger that the Nixon incident produced–but not the same powerlessness–I contacted the Montana American Civil Liberties Union legal division with the story. Six weeks later, I got word that an intern had been researching the issue and legal counsel had determined that the university improperly infringed upon our free speech rights. The message concluded with, “You may be interested to know that some of the leading cases on the subject (of free speech) arise from plaintiffs who are demonstrating/leafleting/educating for more humane treatment of animals!” Interested, yes…but not surprised. To suggest that species other than Homo sapiens are owed consideration–if not (shudder) rights themselves–is a threat to human supremacy and all that implies. It’s a threat that ranges from the very personal (the food we eat, how we are entertained) to the domestic and global economies built on the institutionalized cruelty of animal exploitation.
Our legal counsel pointed out that the University didn’t follow its own policy in dealing with us:
This group sought to hold sign and distribute leaflets to patrons of the Shrine Circus. … University policy provides that non-affiliated users may distribute printed materials, without permission on the cement areas adjacent to the Adams Center “at least 100 feet from any entrance.”
Contrary to University policy, officials at the Adams Center set up a temporary “free speech zone” and directed that the group confine its activities to that location. Unfortunately, this zone was at such a distance from the entrance to the field house- far to the south of the main entrance- that no meaningful communication between the activists and the patrons could take place.
For those with a primary interest in the associated case law:
I’m sure that you have some familiarity with the case authority that governs the reasonableness of restrictions on the time, place and manner of speech. At the risk of repeating to you what you already know, let me review three cases that I found to be most instructive in this matter.
The first is Ward v Rock Against Racism, 491 US 781 (1989). This case established a three part test for evaluating the reasonableness of time, place and manner restrictions on speech. In order to be reasonable, the restrictions must be “justified without reference to the content of the regulated speech…narrowly tailored to serve a significant governmental interest, and… leave open alternative channels for communication of the information.” Ward at 791. “The failure to satisfy any single prong of this test invalidates the requirement.” Grossman v City of Portland, 33 F3d 1200, 1205 (9th Cir. 1994)
The third case applies the Ward standards in a restriction expressed in terms of definite distances from the targeted audience. The case is Kuba v 1-A Agricultural Association, 387 F. 3d 850, decided by the 9th Circuit in 2004. The defendant operates and manages the Cow Palace south of San Francisco. Numerous events are held there in the course of a year including a rodeo and circus performance. The Plaintiff Kuba demonstrates at these events every year. Pursuant to the defendant’s policy, Kuba may demonstrate only within three free expression zones that are between 200 and 265 feet from the entrance to the Palace. Moreover he may not engage in oral advocacy within 75 feet of the entrance or anywhere within the fire zone. Kuba brought suit challenging these restrictions on his advocacy after he was prohibited from demonstrating in the walkway to the arena entrance.
The Ninth Circuit agreed with Kuba. It applied the federal time, place and manner standards articulated in Ward. While the court agreed that the defendant has a right to protect significant governmental safety issues, it concluded that the defendant had failed to demonstrate that Kuba and his fellow demonstrators would cause a safety hazard. The defendant’s policies therefore failed to meet the “narrow tailoring” requirement because they “prevent far more speech than is necessary to achieve the goals…”at 861. “Because the Policy fails the ‘narrow tailoring’ requirement of our analysis, we need not address whether ample alternative channels for communication exist.” At 863.
This is not a large victory for animals. In fact, I’m not sure that it’s rightly called a victory at all; we are merely looking for a prospective remedy, not a judicial finding. But justice for animals cannot be won if their advocates are silenced, and the Fourth of July is the perfect time to celebrate (and demand and safeguard) free speech and our right to protest. Animals have a nearly imperceptible voice on our human-dominated globe, and none in the halls of justice. Supposing those of us who speak in their stead were rendered mute?
The ACLU gets the last word:
Our nation’s founders declared their independence on July 4, 1776, to break free of the tyranny of a nation that denied them the civil liberties that they believed all people were granted as a birthright. They reaffirmed that faith in independence from governmental tyranny with the ratification of the Bill of Rights in 1791. But Freedom cannot survive when those in power make exceptions to the First Amendment for speech they dislike or criticism they would rather not hear. ~ACLU: Free speech/Right to protest