Do we care about the First Amendment, or just our political message?

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Friday November 18, 2011 · 9:34 AM PST

2011/11/18 · 09:34

The subject of the First Amendment and its scope has been the subject of many discussions and even more claims.

But, most discussions do not revolve around how to determine the balance between a government's right/obligation to manage public areas for the benefit of all versus the right of free expression.

Rather, the discourse involves condemnations of the government's actions which impede or restrict the expressive conduct of protestors.

If the First Amendment means anything, it must mean that the same rule applies to all people, regardless of how offensive their views are. The government's job is not to determine whose views are acceptable, and whose are not.

So, let us change the facts in the scenarios facing city and protestors in a few hypothetical, and see if the same outcome holds. The sort of exercise law school students endure across the country.

NOTE: This scenario is not a statement of equivalency or comparison of the merits of different political messages or of the messengers. It is a hypothetical based on real life possibilities, such as Nazis marching through Skokie.

For the purposes of the below, please assume that all protestors/occupiers have non-criminal backgrounds, engage in no acts of violence/threats of violence/other blatant criminal acts, and are American citizens.

strong>Scenario #1

Place: Martin Luther King Jr. Memorial Park, Indianapolis IN.

Hours public is allowed to access: Dawn to dusk

Occupiers: The Ku Klux Klan

Occupation details: Hundreds of Klan member in white hoods occupy the park. They set up tents, kitchens, and libraries where white supremacist literature is distributed. They refuse to leave the park after dusk, instead remaining behind to hold nightly cross burnings that are visible for miles around. They set up displays on the ground that include a very realistic recreation of a lynching, and set up street signs such as "Martin Luther Coon Drive."

City response: After allowing the occupation for a month, the city issues an order to leave the park at dusk, and remove all structures, displays, and property. Those people remaining behind will be arrested and put in jail for crimina trespass, and any property left behind will be impounded.

Decision time: You're the judge who's unlucky enough to receive the Klan's filing for a temporary restraining order, arguing that their First Amendment rights of free speech, assembly and petitioning the government would be violated if the city enforces its order.

Do you grant or deny the Klan's motion? Please explain the legal principles that guide your decision, in terms that could be applied to other cases in the future. In particular, how does the Constitution apply to this case.

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