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]

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]