Category Archives: Political Speech

The Supreme Court and the Occupy Wall Street Movement

The Supreme Court and the Occupy Wall Street Movement

Paul Sloderbeck

The tents are gone in the downtown plazas and parks across the country. There are no reports of police clashes in New York City’s Zucotti Park with protesters associated with the “Occupy Wall Street” Movement. Certain parts of that movement remain, though. The comparison between the “99%” and the “1%” has become a part of the national dialogue. Discussions about wealth inequality in America and disproportionate growth may be more common. But for all the Occupy Movement may have accomplished, the tents are gone. In that regard, municipal governments prevailed. The Courts upheld many of their camping and loitering bans as Constitutional as applied against the Occupy protestors and the tents had to go. The First Amendment may give robust protection to daytime protest activities, but in areas like the symbolic speech involving overnight camping, it could not keep the Occupy protestors in their temporary public homes.

The Supreme Court first proposed a test for “symbolic speech” activities in United States v. O’Brien.[1] This case involved the prosecution of a man for burning his draft card under a statute making that practice illegal. When speech involves “speech” and “nonspeech” elements, the governmental interest in regulating the nonspeech elements can justify First Amendment limitations if it is within the Constitutional power of the government, furthers an important or substantial government interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest.[2] The Court hesitated to allow a seemingly unlimited variety of conduct to be labelled as speech.

The Court later settled on a two-part test for determining when expressive conduct may be considered speech in Spence v. Washington.[3] The factors to be considered are both the intent on behalf of those engaging in the conduct to communicate a message through their conduct and the likelihood that those observing the conduct will understand the message.[4] In Spence the conduct was the display of an American flag that had been hung upside down and modified with black tape to include a peace symbol. Here the Court introduced a context element into its analysis. Certain acts could become speech based on the times in which they occur. In this case the invasion of Cambodia and the Kent State incident played into Spence’s motivation and perception. The Court held that the Washington law under which Spence had been convicted impermissibly limited his First Amendment rights.

In the context of camping or sleeping overnight as a type of symbolic speech, there are several cases arising out of Washington, DC. In United States v. Abney, a World War II Veteran’s continual sleeping in Lafayette Park to protest his treatment by the Veterans Administration was permitted and the Park Service regulation that prohibited sleeping or camping was invalidated.[5] A pair of cases surrounding the sleeping activities of the Community for Creative Non-Violence reiterated this view. The Court of Appeals for the District of Columbia found that the actions of this group camping and sleeping on the National Mall to protest the plight of the homeless had the sufficient context and political expression elements to constitute speech, and that the Park Service failed to show that its interests would be furthered by a ban on the activity.[6] However, a year later the Supreme Court overturned the decision, finding that the protestors’ rights had not been violated.[7]

As the Occupy Movement went through the Courts across the country, many city governments relied on the Supreme Court’s Clark decision to justify their bans on sleeping overnight in city parks, in spite of how the Occupy protestors’ conduct might be deemed expressive under the First Amendment. In Minneapolis, the Court allowed the ban on sleeping in the plaza as a valid time, place and manner restriction under Clark.[8] The protestors there also had no First Amendment right to municipal electricity for purposes of sound amplification. The Court in Occupy Fort Myers v. City of Fort Myers recognized the conduct of maintaining a presence in the park in order to simulate an occupation as expressive.[9] It found the ordinances against loitering and after-hours park use restrictive as applied against the protestors, but did uphold an ordinance prohibiting the erection tents or other temporary shelters for overnight camping.[10] A similar result occurred in the Occupy movement in Columbia, SC, where the court recognized the occupation as expressive conduct, but upheld a ban on overnight camping and sleeping.[11]

The treatment of the Occupy Movements in the Courts demonstrates the dilemma for overnight sleeping demonstrations. The activity is clearly enlaced with symbolic meaning. The overnight presence of protestors gives an effective symbol for a continuous occupation. The Courts have recognized this symbolic speech, and yet have upheld many of the bans designed to make it much more difficult, by upholding bans on the use of tents, electricity or even fully banning the overnight occupation. In many cases this was done in reliance on the Supreme Court’s Clark decision. For all its success in shaping the public dialogue on wealth equality, the Occupy Movement did less in moving forward the First Amendment right to symbolic speech involving overnight sleep in public areas. Perhaps the next movement similar to this one will help further define and advance the contours of this important area of First Amendment Jurisprudence.

[2] Id. at 377.

[3] Spence v. Washington, 418 U.S. 405 (1974).

[4] Id. at 410-411.

[5] United States v. Abney, 534 F.2d 984 (D.C. Cir. 1976)

[6] Cmty. for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C. Cir. 1983) rev’d. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[7] Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984)

[9] Occupy Fort Myers v. City of Fort Myers, No. 2:11-cv-00608, 2011 WL 5554034 at *5 (M.D. Fla. Nov. 15, 2011)

[10] Id. at *11.

[11] Occupy Columbia v. Nikki Haley, Governor of South Carolina, No. 3:11-CV-03283, 2011 WL 6318587 (D.S.C. Dec. 16, 2011)

Trayvon Martin and Southern Justice

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

It is August 1955 in Money, Mississippi. A pre-teen boy from Chicago, Illinois is spending part of his summer vacation visiting some relatives in the Delta, and the boys are currently hanging out in a small, local grocery store. An attractive woman walks in, and the boys’ attention is instantly drawn to her.  The Yankee, a visitor to the South, doesn’t know the old customs of the state. He whistles at the beautiful woman. The grocery store briefly falls silent before the boys are thrown out in an uproar. The visitor has made a grievous mistake: the woman at whom he had whistled is the grocery store owner’s wife. She is also white.

Several days later, the visitor goes missing. Rumors start to circulate; word starts flying around that the grocery store owner, Roy Bryant, and two other men have kidnapped the visitor. The sheriff quickly makes an arrest and charges the three men with kidnapping. Three days after the visitor is abducted, two boys fishing in the Tallahatchie River find his body. His body is beaten, bloody, and bruised. His captors had tied his body to a heavy fan blade with barbed wire tied around the neck. His eye is dislodged, and he has a gunshot wound slightly above his ear. The young male visitor, Emmett Till, had been killed for one reason and one reason only: He was Black.[1]

Flash forward to February 2012 in Sanford, Florida. A high school senior is walking home from a nearby grocery store after buying Skittles and some iced tea. He’s crossing through a neighborhood being watched by the Neighborhood Watch Captain, George Zimmerman. Zimmerman notices the young man walking through the neighborhood, and calls and reports the young man’s presence as “suspicious.” The police urge Zimmerman not to pursue the young man, but Zimmerman does not heed their order. What exactly happened next is still unknown, but the end result is clear: 17-year-old Trayvon Martin is dead, shot by George Zimmerman.[2]

Since Trayvon’s death, facts have emerged and allegations have been made that have led some to call Trayvon a “modern-day Emmitt Till.”[3] The 911 call from Zimmerman to Sanford police reveals that Zimmerman told police a Black male, wearing a hoodie, was walking through the neighborhood, which Zimmerman felt was suspicious. Zimmerman told 911 dispatchers that he was following the young man, which they instructed him not to do.  Zimmerman’s own statement to 911 dispatchers contradicts what he told police after they arrived on the scene of the crime – that Trayvon had attacked him, and he had shot Trayvon out of self-defense.[4] When police arrived, Trayvon was unarmed and carrying only his cell phone, a bag of Skittles, and an iced tea. Police did not arrest Zimmerman, nor did they perform any tests to determine whether Zimmerman was intoxicated. Sanford Police Chief Bill Lee stepped down from his duties after the city council passed a no-confidence vote in Lee. The 911 call reveals Trayvon was screaming for help before he was killed.[5]

 Amid calls for justice from not just Trayvon’s parents, but to the President to everyday citizens, the tragedy continues. Trayvon’s girlfriend was on the phone with him when the scuffle began, and she heard someone accost Trayvon shortly before the line went dead. Facts continue to emerge that indicate Zimmerman’s actions against Trayvon were racially motivated. Most recently, reports have emerged that Zimmerman used a racial slur while following Trayvon, which was recorded on the 911 call.[6] On March 23rd, students in Florida high schools participated in a walk out in protest of the lack of arrest in Trayvon’s killing.[7] That same day, President Obama stated at a press conference, “[W]e will get to the bottom of exactly what happened.[8] Trayvon’s parents have attended rallies in honor of their son’s life and have publicly called for justice.[9] Although Zimmerman remains free, his actions will be reviewed by a grand jury, and the FBI and Justice Department have opened their own investigations into the case.[10] Unfortunately, justice may not be served so easily.

 The issue: Florida is among twenty-one states that have a “Stand Your Ground” law that allows people to use deadly force when engaged in a fight.[11] The law reads as follows:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Thus, in order to have a successful claim, Zimmerman would only need to prove that he had a right to be where he was at the time and that he believed it was necessary for his to shoot Trayvon in order to protect himself from harm or death. The only real question left is whether Zimmerman had cause to believe Trayvon was going to harm him. Seeing as Trayvon was found holding only a bag of Skittles and an iced tea, Zimmerman will have a difficult time showing he was reasonably fearful of “great bodily harm” or death. When the grand jury reviews the evidence – Zimmerman’s statements, the 911 call, Trayvon’s girlfriend’s testimony about their phone call, and the situation as a whole – they will be able to start the steps of bringing Zimmerman to justice.

Even though the process of determining what really happened that night has finally begun, scrutiny of the police department’s handling of the case is opening them up to harsh criticism. Under the law, police are allowed to determine at the scene of the homicide whether they believe the self-defense claim, which is precisely what the police did in the Martin case. However, can they really be faulted for following the law? An at-the-scene determination of Zimmerman’s truthfulness could easily be believed: he had a bloody nose, scratches on his skin, and grass stains on his shirt, all signs of an apparent scuffle.[12] The police were not obligated to take Zimmerman in for further questioning, nor were they obligated to perform any sort of test to determine whether Zimmerman was intoxicated. Yet some have claimed the police did not do enough; they claim if the situation were reversed and Trayvon had been the one claiming self-defense, there would have been an arrest immediately. Whether that is true we do not know for it is only speculative, unfortunately, statistics suggest that statement may have some truth to it.

 Statistics indicate that prosecutors are three times more likely to seek the death penalty when the perpetrator is Black and the victim is White.  Studies have also shown that prosecutors are less likely to seek the death penalty when the victim is Black, regardless of the perpetrator’s race.[13] Aside from the eventual sentence, Black defendants are incarcerated 5.6 times more than White defendants.[14] Even more shocking, White defendants receive sentences ten percent shorter than those received by Black defendants, even when charged with the same offense.[15] Thirty-two percent of Black men will be incarcerated at some point in their lives, while only six percent of White men will suffer the same fate. For drug offenses specifically, African-Americans are thirty-seven percent of those arrested, although they are only thirteen percent of the United States population as a whole.

Though it clearly shouldn’t, race quite obviously plays a factor in criminal charges and criminal sentencing. It mattered in 1955 with Emmett Till: though Till’s captors were caught and charged, an all-white jury acquitted the defendants in a little over an hour. One juror commented, “If we hadn’t stopped to drink pop, it wouldn’t have taken that long.[16] Some jurors admitted they believed the defendants were guilty, but they did not think the death penalty was appropriate for White men who had killed a Black man.

We as a society have progressed since 1955. We cannot allow people like George Zimmerman to stem that progress. We cannot allow Trayvon’s memory to fade. We cannot allow Trayvon to become a modern-day Emmett Till. We cannot allow justice to pass us by. We must continue to push for change at every chance we are given. We must continue to change the way we see each other and the way we view justice.  We must continue to seek justice for Trayvon — for justice is the reason we study law.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Drones: Soon Coming To A Sky Near You

The technology used for air traffic control is changing and so is the civilian aviation landscape. Last month,

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Congress approved a plan that would phase out radar as the means of tracking planes and shifted to a system using GPS-satellite tracking.

Under this plan, the FAA would be required to phase in unmanned drone flights in currently-restricted U.S. airspace.[1] At the present time, the United States military maintains an arsenal of roughly 7,500 remote-controlled drones. With the end of combat operations in Iraq and the scale-back of combat operations in Afghanistan, there will be more drones back in the United States. Under current FAA regulations, remote-controlled drones are not allowed in U.S. airspace without special permission. This restriction is in place because the technology is not compatible with manned aircraft. The FAA is unsure of how the unmanned aircraft will interact with manned aircraft in U.S. cities.[2] To test how to integrate the drone force into the current civilian airspace, the FAA must establish a testing ground by June 30th of this year. The manufacturers of the drone fleet will have to create technology that allows the drones to sense they are flying too close to commercial or other manned aircraft and react accordingly. The FAA has yet to create guidelines as to how the technology needs to be developed and what the technology must contain.[3] Furthermore, there are broader questions as to how military technology used on the battlefield will be implemented back on the home front.

Several organizations have come out against the creation and implementation of these new policies by the FAA. Groups, such as the American Civil Liberties Union, have petitioned the FAA to ensure that the privacy rights of citizens are included in the analysis of allowing drones to be used domestically. The group warns in their petition that drones can easily intrude on the privacy of everyday people, and that this intrusion is a violation of the Fourth Amendment.[4] The ACLU’s petition states that these drones can “track up to 65 different targets across a distance of 65 square miles.” In addition, in the near future, these cameras may soon include facial recognition technology that would make it possible to remotely identify individuals at parks, schools, and political gatherings.”[5] The petition further urges that drones offer the user the ability to survey an area undetected by persons below. The drones can provide constant surveillance that previous technology could not sustain. Additionally, the petition argues that once facial recognition software is available for use on the drones, the FBI and other monitoring agencies could use that same technology against political dissidents. This use would, according to the ACLU, violate the would-be dissident’s First Amendment rights. The petition goes on to urge the FAA to evaluate the available options and conduct a study balancing the public and private interests in drone usage.

According to a recent Rasmussen poll, “that despite a willingness on the part of Americans to see the use of drones by the military in overseas situations, 52% oppose the use of surveillance drones by private entities, police agencies, and government agencies inside the US. Just 30% said they were in favor of the use of drones in the US.”[6] Jay Stanley, of the ACLU’s Speech, Privacy and Technology Project, says, “the FAA should be rightly concerned about ‘the safety effects of filling our skies with flying robots.’”[7] The concerns of these groups can be summed up in an additional quote by Stanley where he stated, “Congress — and to the extent possible, the FAA — need to impose some rules (such as those we proposed in our report) to protect Americans’ privacy from the inevitable invasions that this technology will otherwise lead to. We don’t want to wonder, every time we step out our front door, whether some eye in the sky is watching our every move.’”

Are the fears of the ACLU and other civil rights and watchdog groups well-founded? Will law enforcement in the United States be able to capitalize on this drone technology to decrease the amount of privacy we as Americans enjoy? In a world filled with security cameras and electronic monitoring of our activities such as credit card purchases, how much further can (should) the government go? The ACLU cites facial recognition software as a concern on these drones if used for domestic surveillance. This technology has already been used at large events such as the Super Bowl (since 2001) to target suspected terrorists in the crowd.[8] While it is apparently still in the development stages for use on aircraft, the fact of the matter is that we as Americans already subject ourselves to the use of this technology in some areas of our lives already. Additionally, police helicopters already have the technology to track individuals using infrared sensors. In this day and age, it is nearly impossible to get away from a police helicopter that is equipped with the most up-to-date technology.

Technological developments generally make their way from military use to civilian use, just look to cell phone technology and sport utility vehicles. Why aren’t drones just the next step of technology in a long stream of innovations that have traveled through the military to civilian use cycle? While the ACLU uses a “parade-of-horribles” for their scenario, it does make a valid point. If the police already have the technology to pursue criminals with infrared from a helicopter, why do the police need to be able to track people up to over 65 square miles? If the FAA program is successful in implementing the use of drones, strict limits will have to be put in place. Battlefield technology does not need to be implemented in whole on the home front. There should be certain exceptions allowed for entities such as the Department of Homeland Security and the FBI; however, these exceptions should have to go through the highest levels of authority to be approved.

The FAA has the opportunity to upgrade our air traffic systems to the highest level. The future of shipping could one day be changed because some of these drones can carry such large payloads. While helicopter pilots will not be replaced, there could be fewer deaths from helicopter crashes. While few and far between when compared to the number of helicopters flying every day, there are frequent helicopter and even small aircraft crashes in the United States. If a news crew needs to get a shot of morning traffic, no longer will a helicopter have to take the camera man to the scene. A drone could take off, circle the city, and relay the images of the interstate back to the station to be broadcast. The possibilities for new innovative uses are endless; however, the possibilities for government use against the people are endless, as well, and must be closely monitored to ensure that our right to privacy is not infringed upon by a piece of technology that the eye cannot even see.


Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

The Supreme Court Sacrifices the Individual in Citizens United

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Over the past few weeks, President Obama, hitting key political battlegrounds, has taken bus tours of North Carolina and Virginia and unveiled his Housing Refinance Program and his Student Loan Initiative in economically strapped Las Vegas and Colorado, respectively. Desperate to improve his public approval ratings, Obama has created programs designed to alleviate economic distress and has taken these programs directly to the people. This is how it should be—the candidate catering to the voiced needs of the people responsible for his election.

Imagine, instead, the President designing his policies to garner the support of the likes of Exxon Mobil, General Electric, General Motors, or Bank of America. What if the Fortune 500 companies held the election in the balance and campaign stumping simply involved shaking hands with top corporate executives? Suppose town meetings and debates were replaced by question and answer sessions before stockholder meetings.

As a result of the Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission, the imagined scenario might offer a more viable means of securing election success. In Citizens United, the Supreme Court maintained that corporations are persons entitled to First Amendment rights. Hence, the government may no longer limit the campaign contributions of corporations because to do so, the Court claimed, would be to deprive the companies of their First Amendment right of free speech. The decision overturned two cases, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission, which had authorized limitations on corporate spending.  Although the Citizens United decision did not overturn laws that restrict direct contributions to candidates, the justices at least recognized that the consequences of Citizens United could be tantamount to removing all restrictions.

In the name of free speech and unrestricted political discussion, the Court has raised a specter of corporate domination at the expense of individual freedom. By treating corporations as persons under the Constitution, and by protecting their personal rights, the Court necessarily dilutes the First Amendment rights of the individual. Responding to the Citizens United decision, President Obama labeled it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”  Justice Stevens, who wrote a stinging ninety page dissent, aptly points out that the court erred in equating money with speech, and, in doing so, it furthers the risk of corruption.

The problem with Citizens United‘s ruling is that it goes to the very heart of our republican system of government–how to give a voice to each citizen. In other words, how does one keep the rights of the individual from being consumed by the demands of special interest groups? The framers of the Constitution addressed and grappled with this very issue. James Madison called these special interest groups factions, which he defined in the Federalist Paper No. 10 as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Whereas he recognized these factions could never be eliminated, controlling the power of these factions was deemed of utmost importance, if the republic was to survive. Consequently, the Founding Fathers drafted the Constitution, separated powers and provided checks and balances, all in an effort to keep one segment of the population from becoming too powerful.

In the Federalist Paper No. 10, Madison argues the most common cause of factions is the unequal distribution of property or wealth. The tendency of the wealthy, caused by human nature, and hence impossible to eliminate, is to succeed by suppressing the rights of the weak. Consequently, the supreme task of the republic is to protect the rights of the weak. Otherwise, individual rights and freedoms become meaningless. If one applies Madison’s analysis of factions to modern corporations, the corporate structure provides the means by which a group of people can become “united and actuated” by their “passion.” This passion, to make money at all cost, is often “adverse to the rights of other citizens.” This passion, to cite only a few examples, has created a large populace addicted to nicotine, fast food, and gas-guzzling cars. It often exploits workers, by depressing wages, and consumers, by inflating prices. Left unregulated, this passion has little regard for the environment whenever conservation measures strain corporate profits.

Resonating the words of the Federalist Papers, Justice Stevens writes his dissent in the spirit in which the Constitution was drafted. He writes, “the Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare.” Referring back to the philosophy of Madison and other Framers of the Constitution, Stevens argues, “it was the free speech of individual Americans that they had in mind.” The chief problem with the Citizens United decision is that, by equating the First Amendment rights of corporations with those of individuals, it will, in the words of Justice Stevens, “cripple [efforts] to adopt even limited measures to protect against corporate domination of the electoral process.”  The Court has sacrificed its constitutionally granted power to keep the corporate faction in check for the good of the people.

Reality suggests that corporate millions are not spent to promote innovations that would benefit the general welfare of the public, but rather they are spent to promote and sustain managerial interests and to subvert legislation that operates against that interest. Hence the corporate voice is not even the voice of the individual shareholders. No language in the Constitution mandates the extension of First Amendment freedoms to corporations. To the contrary, the intent of the drafters is clearly otherwise—protect the rights of the individual from the encroachment of factions. As a natural extension of the Court’s logic, Justice Stevens points out that soon the Court will be granting corporations the right to vote in order to exercise their newfound freedom of speech. If the Court continues to equate the civil rights of individuals with those of corporations, why not?

Cites Used

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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