Free speech and public spaces (briefly)
In light of the discussion over the Zuccotti park eviction, let me offer a (very) quick overview of first amendment law as it applies to public protest. As a general rule, free speech—particularly political speech—is highly protected. There are a few exceptions, like threats, slander, and obscenity. Even in those cases, their is a strong preference against prior restraint. Letting people talk and suing them later, if necessary, is preferable to suing somebody to prevent them from talking. Similarly, talking, holding signs, performance art, printing pamphlets, blogging, marching, and so forth are all protected expression. Despite this, reasonable time, space, and manner restrictions are permissible.
These time space and manner restrictions generally are targeted to ensure one person’s exercise of free speech doesn’t infringe on other people’s rights. You can say whatever you want, but you can’t say it at extreme volume at 2:00 a.m. in a residential area. Similarly, while you can’t monopolize a public space that other people want to use, the government can’t use pretextual reasons to silence an unpopular opinion.
When deciding whether a restriction is reasonable, consider both a cause you support and one you don’t support. Consider, in addition to OWS, street preachers, the Tea Party, and something as universally unpopular as the KKK. If we insist that a particular form of expression should be Constitutionally protected, are we comfortable giving the same protections to everybody? (Think Westboro Baptist Church).
On a related topic, how should courts handle criminal activity that is predominately expressive? Should prosecutors go more lightly on somebody engaged in civil disobedience that is at least intended to improve society?
