The Constitutional Infringement Zone. Protest Pens and Demonstration Zones at the 2004 National Political Conventions

• Author: Susan Rachel Nanes
• Pages: 189-232

The Constitutional Infringement Zone¹Protest Pens and Demonstration Zones at the 2004 National Political Conventions

Page 189

Introduction

On the morning of August 14, 1765, a lively crowd of Bostonians gathered at the giant elm tree at the intersection of Essex and Orange (now Washington) Streets, just blocks from Boston Common.² Local craftsmen and merchants had planned a rally to protest the British Parliament's passage of the Stamp Act, a tax measure set to take effect later that autumn.³

Political theater continued at the tree throughout the day, culminating in the evening with a mock funeral procession and burning of effigies of the appointed local stamp collector and the Parliamentary Lord said to be the Stamp Act's main proponent in England.⁴

On November 1, the day the Stamp Act took effect throughout the British colonies, tensions which had been building in New York City broke dramatically at night.⁵ An estimated crowd of two thousand colonials marched to the British military post at Fort George and hung an effigy of the colony's royal governor.⁶ They next relocated with the effigy to the governor's mansion, appropriated his fine carriage and used it to parade the effigy through the streets, concluding with a bonfire of both carriage and effigy.⁷ Similar protests occurred throughout the cities and larger Page 190towns of the North American colonies⁸ and the uproar eventually forced Parliament to repeal the Stamp Act in May of 1766.⁹

The Stamp Act Riots in Boston and New York City signaled the nascence of a revolutionary movement. During the next decade, self-professed Patriots and Sons of Liberty took to the streets and claimed highly visible public areas from local colonial authorities.¹⁰ According to historian William Pencak, the revolutionaries transformed these spaces into liminal realms- places where the authority of the British empire did not apply and where colonials employed protest, commemoration, and satire to act out the forms of revolution long before the Continental Congress signed the Declaration of Independence in 1776.¹¹

Over three centuries later, large scale protests loomed again in Boston and New York as the Democratic and Republican national political conventions neared during the summer of 2004. By this time, authorities were ready to meet the challenges. The Secret Service designated the conventions as National Special Security Events, ensuring the highest magnitude of attention and resources possible would be directed toward security concerns.¹² Page 191 Convention planners and police departments joined with the Secret Service to devise intense, complicated, and costly security plans.¹³

The proposed scheme for the Democratic convention in Boston included a "demonstration zone" to be set up nearby the Fleet Center arena where the convention was to be staged. This strictly designated and closed-off area would hold a limited number of protestors and surround them with metal barricades, mesh netting, and barbed wire.¹⁴ Armed police personnel would stand by to monitor the activities.¹⁵ In New York City, security plans included a restricted perimeter around Madison Square Garden and the police planned to close off protesters on all sides by using metal barricades.¹⁶

Within these enclosures, protestors were to enjoy freely and fully the rights of speech, assembly, and petition for redress of grievances guaranteed by the First Amendment to the federal Constitution. At the same time, Boston and New York City authorities confidently promised the safety and security of convention delegates, guests, and attendees.¹⁷ The conventions, national political events set within the centers of two of the country's largest cities and the first such events since September 11, 2001, attracted intense national and international media attention. Months had been spent in planning and preparation. In Page 192 theory, the Boston demonstration zone and the New York City protest pens represented an effective compromise between dramatically opposing elements: the First Amendment rights of protestors and the demand for increased police power to ensure heightened security measures.18, 19

In practice, the balance seemed likely to favor heavily the latter at the expense of the former. Shortly before the conventions opened, individual protesters, joined by loosely organized protest groups and the American Civil Liberties Union, brought federal suits in Massachusetts and New York. The plaintiffs prayed for injunctive relief, claiming that the protest pens and demonstration zone, as planned, would irreparably violate their First Amendment rights.²⁰ This comment will analyze the failure of the Boston plaintiffs and the relative success of the New York plaintiffs in an effort to formulate the contours of an emerging jurisprudence regarding this extreme form of crowd control.

Part I of this comment provides the relatively brief legal and historical background of protest pens and demonstration zones. It presents the standard test used by courts to analyze time, place, and manner restrictions on First Amendment rights in public fora, as articulated in the Supreme Court's 1989 decision in Ward v. Rock Against Racism.²¹ Part II describes the facts of the convention lawsuits, the parties' positions, and the courts' holdings. Part III focuses on the Rock Against Racism test used by both courts and explains how it fails to adequately protect protestors' First Amendment rights when applied to protest pen and demonstration zone schemes. Part IV suggests a progressive solution which may aid future event security planners and protest organizations in finding a viable middle ground. This is followed by proposed adjustments to the Rock Against Racism analysis which could Page 193 ensure protection of First Amendment rights without compromising the legal regime's long-settled familiarity.

I Legal and Historical Background

In their current incarnation, protest pens and demonstration zones are fairly recent modes of crowd control. Wooden street barricades have long been used for general crowd control along sidewalks at parades.²² However, during Rudolph Giuliani's mayoralty in New York City (1994-2002), metal barricades became a daily presence to help smooth pedestrian and vehicular traffic at midtown intersections.²³ Use of barricades as complete enclosures at specific events is not new either,²⁴ but their deployment and intensity has increased dramatically in cities across the nation since the disastrous and widely publicized riots which occurred during the World Trade Organization's 1999 conference in Seattle, Washington.²⁵

Security arrangements for the conventions held in connection with the 2000 presidential elections demonstrated the effects of the Seattle debacle.²⁶ Although the Republicans' convention in Philadelphia that year saw a number of clashes between protestors and police,²⁷ no litigation arose over security procedures.

However, the planned arrangements for the Democrats' convention Page 194 in Los Angeles spawned at least one such lawsuit in federal court, Service Employee International Union, Local 660 v. City of Los Angeles [hereinafter SEIU].²⁸

The Los Angeles convention security arrangements foreshadowed those designed for the Democrats' 2004 convention in Boston. These arrangements, prepared by the Los Angeles police department, the Secret Service, and other convention planners and agencies, consisted primarily of an extremely large "secured zone" surrounding the Staples Center, with access limited to holders of convention tickets or Secret Service credentials.²⁹

Outside of this zone and quite some distance away (260 yards) from the entrance where convention delegates would arrive and depart, the planners located a small "demonstration zone."³⁰ The Los Angeles plaintiffs, a variety of protest organizations and individuals, claimed the zone arrangements would violate their First Amendment speech and assembly rights if officials deployed the plans as designed.³¹

In analyzing the plaintiffs' claim, the SEIU district court worked within the parameters of a long-settled First Amendment "time, place, and manner" standard required of government or state efforts to restrict speech and assembly in traditional public fora.³²

The roots of this legal regime stretch back to the nineteenth century, when cities and towns began to deal with public preaching by Jehovah's Witnesses.³³ The doctrine evolved during the twentieth century through cases dealing with the labor movement during the Great Depression³⁴ and came to full flower during the civil rights and anti-war demonstrations of the late 1960s and early 1970s.³⁵ Page 195

In recent decades the analysis has remained fairly settled.³⁶

The courts deciding SEIU in 2000 and the 2004 convention cases applied the "time, place, and manner" test as articulated by the Supreme Court in its 1989 decision, Ward v. Rock Against Racism.³⁷ In that case, the Court upheld a New York City noise regulation requiring that city sound systems and technicians be utilized at all musical performances in the city's parks.³⁸

Essentially, the Rock Against Racism test ensures that government attempts to restrict the...