Keeping I.C.E. Safe in a Privately-Owned Freezer: Using Trespass Law to Circumvent First Amendment Protest Protections

The First Amendment protects the ability to engage in free speech, including protest, in public forums, government owned spaces like parks and sidewalks, provided that protesters do not interfere with movement or block access. In order to limit speech that takes place in such a manner, the government must narrowly tailor their restrictions on speech to serve a compelling governmental interest. This is often called strict scrutiny, and is the highest standard the judiciary uses to evaluate government action, thereby putting a high bar in place to protect First Amendment rights in this case. Owners of private spaces, on the other hand, are able to limit free speech and give orders to leave the premises, the violation of which may constitute trespass. This limits the conflict between property rights and free speech rights that would ensure were there no limitations on where protests could take place. Property owners, particularly businesses, have a legitimate interest in being able to control the actions of guests on their premises, especially when protest might threaten to disturb the regular conducting of business. But what if the government utilized the enhanced ability of private property owners to limit free speech in order to shield controversial offices and activities from protest? [read more]

States Push Back Against Peaceful Protests (Part One)

In the wake of President Trump’s executive order banning immigration from seven Muslim-majority countries, millions of protestors took to the streets across the country to voice their concerns and grievances involving Trump’s immigration stance. While Muslims and Muslim support groups are encouraged by and grateful for the support provided by protestors across the country, Republican lawmakers are pushing legislation that would criminalize nonviolent protest. For example, in Iowa, lawmakers have introduced a bill that would make blocking traffic a felony punishable by up to five years in prison. In Minnesota, lawmakers proposed an anti-protest bill that would dramatically stiffen fines for freeway protests and would allow prosecutors to seek up to a full year of jail time for protestors blocking a highway. In Indiana, legislators have introduced a bill that would allow police to remove protestors blocking traffic using “any means necessary.” These are not the only states considering anti-protest bills. Others include: Washington, Michigan, North Dakota, Virginia, Colorado, North Carolina, and Missouri. These various anti-protest bills have caught the attention of the nation’s most active civil liberties guardians, the American Civil Liberties Union (ACLU) and the First Amendment Coalition (FAC). Lee Rowland, a senior attorney at the ACLU, and [read more]

How the Law Sees Kaepernick’s Protest

By Lee Henderson Colin Kaepernick’s decision to take a knee during the playing of the Star-Spangled Banner has sparked much conversation about the customs and legal rules expected during the National Anthem. While some take offense to the issues the back-up quarterback is kneeling for, most critics are offended by what they perceive as a disregard for the military members who fought and died for the flag (despite Kaepernick’s denial.) Since the Anthem’s first use in the early 1900’s, standing during it’s playing was a contentious issue. Following Hoover’s declaration that the Star-Spangled Banner be the country’s official national anthem in 1931, a poll revealed that public opinion was split as to proper behavior during the Anthem, half of respondents saying mandated standing was overly authoritarian. Congress weighed in on the issue when it passed 36 U.S.C. § 301, also known as the National Anthem Statute, which said that people should “face the flag and stand at attention with their right hand over their heart.” Although this still stands as law, no criminal penalties were ever prescribed in case of violation of the provisions. The Supreme Court also took its turn commenting on the status of these customs as they [read more]

Forums and Foxholes: Garb Statutes and the First Amendment by Candice Andalia

It is an oft-quoted tenet, originating with the U.S. Supreme Court’s holding in Tinker v. Des Moines Indep. Cmty. Sch. Dist.,[1] that teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[2] However, this sweeping language, an avowal that once provided educators with broad protections, is now nothing but a carcass constructed of empty words. And although American courts frequently invoke this noble lineage, Tinker’s promises, starkly juxtaposed with the rotting state of First Amendment jurisprudence, ring hollow. Nowhere is this chicanery more apparent than in Nichol v. Arin Intermediate Unit 28,[3] where the District Court for the Western District of Pennsylvania upheld the constitutionality of the Pennsylvania Garb Statute,[4] which criminally sanctions teachers who wear religious emblems or insignia in the classroom. This law, which openly punishes only symbolic, religious speech, discriminates against a particular viewpoint. Despite being facially discriminatory, the Pennsylvania court, like others that have heard constitutional challenges to similar statutes, upheld the statute because it determined that the legislature’s goal of preserving “an atmosphere of religious neutrality”—preemptively curing an Establishment clause violation— met the compelling state interest standard.[5] However, the court did not finish the necessary inquiry by requiring [read more]