1st Amendment notes from the National Security Archives, Knight Foundation, and the 9th Circuit

Three items today all deal with the 1st Amendment in some fashion.

From the National Security Archives comes word of the availability of all published editions of the Pentagon Papers in a searchable format that “allows for a unique side-by-side comparison, showing readers exactly what the U.S. government tried to hide for 40 years by means of deletions from the original text.”

Today’s posting includes the full texts of the “Gravel” edition entered into Congressional proceedings in 1971 by Sen. Mike Gravel (D-Alaska) and later published by the Beacon Press, the authorized 1971 declassified version issued by the House Armed Services Committee with deletions insisted on by the Nixon administration, and the new 2011 “complete” edition released in June by the National Archives and Records Administration (NARA).

Accompanying the posting is the National Security Archive’s invitation for readers to identify their own favorite nominees for the “11 words” that securocrats attempted to delete during the declassification process for the Papers earlier this year, until alert NARA staffers realized those words actually had been declassified back in 1971. Best submissions for the “11 words” — as judged by National Security Archive experts — will appear in the Archive’s blog, Unredacted, and on the Archive’s Facebook page.

There’s also a new report from the Knight Foundation, “The Future of the First Amendment,” which examines the relationship of social media use to support for the 1st Amendment.

According to the foundation’s press release:

Both social media use and First Amendment appreciation are growing among high school students. More than three-quarters of students use social media several times a week to get news and information. Meanwhile, the percentage of students who believe “the First Amendment goes too far” in protecting the rights of citizens has dropped to a quarter (24 percent) in 2011 from nearly half (45 percent) in 2006.

There is a clear, positive relationship between social media use and appreciation of the First Amendment. Fully 91 percent of students who use social networking daily to get news and information agree that “people should be allowed to express unpopular opinions.” But only 77 percent of those who never use social networks to get news agree that unpopular opinions should be allowed.

Still, many teachers believe social media harms education. Most teachers also do not support free expression for students. Only 35 percent, for example, agree that “high school students should be allowed to report controversial issues in their student newspapers without the approval of school authorities.” In addition, teachers are more inclined to think that the emergence of the newest forms of digital media have harmed (49 percent) rather than helped (39 percent) student learning.

And there’s a new 9th Circuit Court of Appeals decision regarding use of public sidewalks that has implications for the city’s citation of two women for their part in a protest in support of gender equality on a Waikiki sidewalk. The ACLU announced last week that it is defending them in court.

The two were charged with failing to obtain a parks department permit for “meetings or gatherings or other similar activity held by organizations, associations or groups.”

In the 9th Circuit decision:

A pair of day-laborer organizations challenge a City of Redondo Beach (Redondo Beach or the City) anti-solicitation ordinance that bars individuals from “stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business, or contributions from an occupant of any motor vehicle.” Redondo Beach Municipal Code §3- 7.1601(a) (the Ordinance). We agree with the day laborers that the Ordinance is a facially unconstitutional restriction on speech.

Our analysis is guided by certain well-established principles of First Amendment law. In public places such as streets and sidewalks, “the State [may] enforce a content-based exclusion” on speech if the “regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). For content-neutral regulations, the State may limit “the time, place, and manner of expression” if the regulations are “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Id.

We conclude that the Ordinance fails to satisfy the narrow tailoring element of the Supreme Court’s “time, place, and manner” test. The Ordinance is not narrowly tailored because it regulates significantly more speech than is necessary to achieve the City’s purpose of improving traffic safety and traffic flow at two major Redondo Beach intersections, and the City could have achieved these goals through less restrictive measures, such as the enforcement of existing traffic laws and regulations. Because the Ordinance does not constitute a reasonable regulation of the time, place, or manner of speaking, it is facially unconstitutional.

It looks to me like the ACLU has a very strong case, which the 9th Circuit has just reinforced.


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6 thoughts on “1st Amendment notes from the National Security Archives, Knight Foundation, and the 9th Circuit

  1. ohiaforest3400

    Another wrinkle in the Meiers’ case that may also emerge during the APEC meeting is that the redevelopment of Waikiki has, in places, covered the sidewalk that exists on public property with grass, landscaping, etc. and moved the sidewalk onto private property, thereby delivering pedestrians to business storefronts. When persons exercising free speech rights by, say, carrying a placard with a message, walk the sidewalk like anyone else, private property owners claim trespass, get the police involved, and block protected expression. I’ve never understood how the City was able to, in essence, give away a traditional public forum, make it private, and purportedly exempt it from free speech requirements. But it’s happening, and it’s only going to happen more. The only alternative would be to either walk in or on the planters, etc. placed on what used to be the sidewalk or stepping in to the street, both of which will no doubt bring HPD action as well. While, the 9th Circuit opinion suggests that such charges would fail, that’s small condolence to the Meiers and others. I hope the ACLU will keep up the pressure on issues like this.

    Reply
  2. Lopaka43

    I believe that the owners of the resorts have actually created a public easement over their property for these relocated sidewalks which also allows them to recieve a tax reduction.

    Consequently, I don’t think they can claim the areas are not public spaces.

    My understanding is that the protesters were charged with not having a permit from the City, not with trespassing on private property.

    Reply
    1. ohiaforest3400

      I understand that the Meier’s were charged under the permit ordinance and, while I hope you are right about the easement, I know for a fact that the adjacent property owners are treating the relocated sidewalk as their property, with police complicity. No one should have to subject themselves to civil or criminal legal action and have to rely on the courts to find that the easement protects their free speech rights. Who has the time or money for that?

      Reply
  3. damon

    ACLU of Hawaii is looking for Protest Monitors for APEC according to their Facebook page:

    “Protest monitors needed for APEC 2011!

    ACLU of Hawaii will be holding a protest monitor (also known as a “legal observer”) training for those interested in acting as protest monitors at APEC 2011. Please email your contact info to office@acluhawaii.org for information about the next training. Thanks!”

    Reply
  4. Jane

    What we need is a way to balance the constitutional rights of some to do a thing, against the constitutional rights of others to be free from having the thing done to them against their will. Now, if we could solve this dilemma, we’d get closer to peace on earth, good will towards men!

    Reply
  5. Ian Lind Post author

    This comment ended up in the wrong comment thread, so I’m copying it over here.

    —————–

    From Cathy Goeggel // Sep 21, 2011 at 10:30 am

    Animal Rights Hawai’i plans to distribute literature regarding the plight of animals raised for food on Fort Street Mall on Oct. 3, which id World Day for Farm Animals.

    I was told by C&C Parks Dept. that we needed to be a non-profit (we are) and that we would have to be approved by the Ft. St. Mall Business Improvement District Assn, and that we would have to pay a $25 fee. I questioned why we would need to be vetted by a private business assn. I was told that we can’t compete with local businesses. I then contacted the ACLU. (haven’t heard back from them yet)

    Monday I was told by Susan Yamasaki, Parks Dept. District Dir. that in addition, we would need to show proof of insurance. She told me that this had come from “the Administration.” After I told her that I had contacted ACLU, she offered me a permit at no charge. I declined and told her that we will be at Fort St. Mall on 10.03 and that I don’t believe that the C&C has the right to limit our free speech on public property.

    I will have copies of the 1st and 14th amendments available for the police to read should they give us heat.

    Reply

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