Free Speech Battle at Republican National Convention

Last week’s celebration by 1.3 million delirious Cleveland Cavaliers fans over their once-in-a-lifetime basketball championship has suddenly morphed into the Black Hole of next month’s also unprecedented Republican National Convention, with far less local pride, and far less joy. Alarmed that the thousands of protesters might expose and embarrass a potentially dysfunctional and aberrant event, the City enacted regulations on free speech that, to be kind, are arbitrary, restrictive, absurd, and patently unconstitutional. A touch of sanity was just restored after a federal judge forced the City to amend its anti-speech plan.
The City’s regulations are a hodge-podge of the most bizarre limitations on free speech. Speech “zones” and speech “cages” have been used before to squelch free speech. But the City has established a huge area – a 3.5-square mile area dubbed the “Event Zone” – that restricts parades, demonstrations, and speech-making anywhere in that zone. The area is by far the largest zone ever enacted to limit public speech. And within that zone organizations and protest groups seeking to parade, demonstrate, and deliver speeches are subjected to numerous restrictions that make it virtually impossible to communicate directly to relevant parties – delegates, media, politicians – at places where these people likely would be gathering, such as Quicken Loans Arena, the site of the Convention, and at relevant times when the Convention would be in session.
For example, within this large area the regulations designate only one “Official Parade Route,” an isolated route far from the interior of the Event Zone where the Convention would be held. No alternative parade routes are allowed within the Event Zone, even the parade route that the Cavaliers used to celebrate their championship. The parade route follows along a remote boundary far from places where convention goers and bystanders would likely be situated. Indeed, most of the parade route crosses a bridge – labeled “the bridge to nowhere” – where marchers would not be able to view their intended audience and that audience would not be able to see and hear them.
Moreover, parades are limited to a few hours in the morning and afternoon on Convention days, hours that do not overlap with the hours of the Convention, and indeed at a time when delegates and media probably would be sleeping. And the time allotted for a parade is 50 minutes; it is hard to imagine that a parade involving thousands of marchers would be able to traverse and finish the route in that length of time. The City has justified these severe restrictions on speech as legitimate safety and traffic congestion measures.
The City’s regulations also limit speech in public parks, even though parks are quintessential places for speech. There is a large public park in Cleveland, but that park is off limits. Two much smaller parks are allowed for “Public Arts” and “Public Installations,” but speakers are not allowed to bring platforms or soap boxes for their speech. And except for small battery operated bullhorns, no sound amplification equipment is allowed.
The City’s Event Zone was drawn so expansively that it sweeps within its boundaries residential areas, a university, grocery stores and other places where people live, work, shop and conduct their daily lives. Hundreds of homeless people live in the area. The absurdity of the restrictions is illustrated by the items banned – designated “contraband” – that are not allowed to be possessed within the Event Zone. Thus, everyday items, many of which are used by the homeless, including rope, string, tape, tents, sleeping bags, and coolers are prohibited by the regulations. Two grocery stores and many smaller food stores are situated within the Event Zone. But if a shopper carries a can, canned goods, or a bottle of water out of a store, she may be in possession of contraband. University tennis courts are situated within the Event Zone but the regulations outlaw the possession of tennis balls.
Further, the regulations require anyone who wishes to exercise expressive rights within the zone to obtain a permit. Many permit applications have been pending for months. The City processed some applications but not all of them and has not responded to requests for explanations. The City excused its inordinate delay by claiming that the Secret Service had not completed its Convention security plan, which would not be finalized until two weeks before July 18, the beginning of the Convention. Any significant delay to organizations hoping to plan free speech activities at the Convention in terms of cost, logistics, advertising, arranging transportation, and insurance is obviously intolerable. Delaying speech is tantamount to denying speech. It effectively constitutes an unconstitutional prior restraint on free speech. And to the extent that the City’s obstruction of speech is seen by some people as a provocative act, it can only exacerbate the risk that some people will engage in criminal behavior as a consequence.
Supreme Court precedents have consistently sought to maintain a fair balance between protecting legitimate government interests and safeguarding free speech. Regulating the time, place, and manner of free speech has produced a huge body of Supreme Court jurisprudence. Assuming the government’s interests are legitimate and important, and that the government is not silencing speech because it disagrees with the content of the speaker’s message, the ability to control speech must be no greater than reasonably necessary to accomplish the government’s significant purposes. In effect, the government has to narrowly tailor its regulations to allow the exercise of a fairly broad amount of speech, especially when the speech concerns matters of wide public interest and is sought to be exercised in places that traditionally are used for public speech, such as parks, streets, sidewalks, and plazas. And if some places are off-limits, there must be alternative channels for speech that are at least as effective.
In a preliminary ruling last week, Federal District Judge James S. Gwin found in a lawsuit brought by the ACLU that the Event Zone restrictions plainly transgress the First Amendment. He issued a temporary injunction, and ordered the City to amend its regulations substantially. Judge Gwin did not dispute that Cleveland’s interests in safety and traffic congestion are incontestably legitimate concerns. But he noted that the City would be able to protect its interests without suppressing so much speech. The regulations are not narrow; they are so broad, even draconian, that they make effective speech to a listening audience often impossible. Judge Gwin found that the Event Zone area is far too broad; the time, place, and manner regulations are too restrictive; and the City’s failure to act in a timely manner on permit applications is arbitrary.
As of this writing, the City has agreed to modify its regulations. Exactly what those modifications will be remains to be seen.

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