and your next assignment:

Will someone please explain to me how anyone can possibly imagine it to be constitutional for a permit to be denied for a political rally?

I can wrap my brain around the mindset that says you should apply for permits for such things, for public safety reasons: before you and a hundred thousand of your friends show up, you do others the courtesy of letting them know so that they can re-route busses and so that the cops (purportedly public servants) can keep the cars out of the way.

But in what Bizzarro-land does such a permit ever get denied? Did these people read the same Constitution I did?

What's the word for this emotion I'm feeling, halfway between baffled and angry?

Tags: ,

28 Responses:

  1. ladysisyphus says:

    Tom Tomorrow provides something of an answer from a few days ago:

    There's a peace march scheduled in New York City today. But it will be more like a peace standstill. Unlike the 602 cities around the globe where protesters plan to march together to protest a war on Iraq, New York authorities won't allow it.

    The Bloomberg administration made the decision well before last week's heightened security alert. A federal three-judge panel affirmed it - even though The New York Times reported a police commander told a federal judge that he had no reason to expect violence.

    The Homeland Security Department alerted the country that there's a possible threat, but urged Americans to go on with our lives. Anyone considering marching with 100,000 other people can decide for themselves whether to take the risk.

    But there's more to it than that. The Bush administration - which is in the midst of trying to sell the war to the public - filed a brief urging the judges to uphold denial of the permit. And the Bloomberg administration has no intention of forcing a St. Patrick's Day standstill instead of a parade - even though it's bigger and likely more raucous. [text courtesy

    Yep. You can blame Dubya for this one, too.

  2. altamira16 says:

    Say I think abortion is wrong and I hate abortion doctors so much that I want to kill a few. I would think that if I want to rally around a Planned Parenthood, it could be denied. Or say, I want a KKK Rally that ends on the steps of an all black church. I bet the permit for that one could be denied too.

    But the thing in NY, I am not understanding why they are denying it.

    • jfb says:

      Anti-abortion activists routinely demonstrate at Planned Parenthood clinics. I don't have any black church info offhand, but there's a famous case in which a U.S. Court of Appeals ruled that the Nazis had to be allowed to march in the majority-Jewish town of Skokie, IL. (Since then, the Klan has held rallies there too.)

      • altamira16 says:

        Abortion activisits are limited by when and how they are allowed to protest at abortion clinics due to the Freedom of Access to a Clinic Entrance Act. This is constantly tossed back and forth in the courts, but passing all the old people protesting on my walk to school in Massachusetts in front of planned parenthood, I noticed that they were only there BEFORE the building opened in the morning.

        I can't find anything to read about the case on Stokie, IL except some references to a book. I think a lot with that case has to do that they actually let the Klan march. Also it was a march in a town rather than a rally outside the door of some building.

  3. you've got a pretty broad complaint there.

    "hi, i represent the ku klux klan, and i'd like my group to hold a rally exactly five feet away from the million man march in washington DC. at the same time.

    i can't??


    ...this of course, has nothing to do with the march in new york not getting approved. that is clearly unconstitutional and dumb.

    • jwz says:

      Wow, two people invoking the Klan (= Hitler) argument at the same time!

      Double word score!

    • jwz says:


        Date: Tue, 11 Feb 2003 14:05:47 -0800
        From: Brad Templeton <>
        To: Declan McCullagh <>
        Subject: Re: FC: Internet's most reviled Holocaust revisionist arrested in U.S.

        My brain can't avoid the irony of writing the following statement...

        "First, they came for the Nazis, and I did not speak out, for I was not a Nazi..."

  4. grahams says:

    The rally permit was approved. The march/parade permit was denied.

  5. greyface says:

    The weird thing is... <disclaimer>and mind you, this is the perspective of a random person with no official training in legal, or constitutional matters</disclaimer> that authority figures are permitted by law to silence speech and disperse assemblies as long as the reason it's being done is content neutral. So, whatever reason as long as it isn't "We don't want them to say that where people can hear."

    Which breaks a lot of preconceptions about what the bill of rights guaranties, but is actually still in line (from a weird, sort of lawyerish perspective), because the bill of rights prevents the passage of laws abridging the guaranteed rights, it does not, itself, guarantee those rights. So, US citizens don't have an inalienable right to political speech. They just have protections against laws which violate that right.

    So, what happens is when a law interacts with speech, assembly, press, religion, right to carry firearms, etc, courts are forced to review the law itself deciding if it directly violates the bill of rights, and assuming it doesn't, if the specific application of the law was content specific.

    I guess the footnote here is that Public Property means the exact opposite of what it should. Public Property which should be free for public use is in fact by default, restricted so that nobody can use it, and then permission is handed out by governing bodies (see also: The EM spectrum, driver's licensing, logging in public woods, etc)

    • bitwise says:

      Content-neutral isn't enough. There's also another level there; the court will apply a certain test to see if the free-speech limits can pass a certain bar. In cases like this, you'd hope they apply the highest standard, where they have to demonstrate that the speech limitations are "narrowly tailored" to serve a "compelling government interest". Meaning that unless somebody's gonna get killed, the first amendment rules.

      The judge in New York (and the appeals court) apparently believed that there was a serious risk to public safety if they actually let 100,000 people walk down the streets.

      • So this "test" of constitutionality is known as the "O'Brien Test", for a 1968 case:
        "[W]hen speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulation of the non-speech element can justify incidental limitations on First Amendment freedoms.... [A] government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest." United States v. O'Brien (1968).

        For access to a public forum, and restrictions from use of that public forum, we apply the O'Brien test Within this, the "narrow tailoring" requirement, as per Ward v. Rock against Racism, 1989:"[I]s satisfied `so long as [the] regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.'"

        In the case of a permit for protest, the likely interest is on the content-neutral basis of order, or somesuch justification. Perhaps it's based on "[c]lear and present danger of riot, disorder, interference with traffic upon the public street or other immediate threat to public safety, peace, or order" - in which case "the power of the State to prevent or punish is obvious." Feiner v. New York (1951).

        This corresponds with another restriction on speech, the "Time Place and Manner" restriction, as given in Clark v. Community for Creative Non-Violence (1984) (upholding the National Park Service's regulation against sleeping in national park as applied to a group that wanted to sleep there to protest homelessness). Thre, the Court analyzed the issue under O'Brien, noting that the only difference between the O'Brien test and time, place, and manner test is that reasonable time, place, or manner restrictions may be valid even though they directly limit oral or written expression, whereas the O'Brien standard applies to combined speech and nonspeech communication.

        That a state can require parade permits where their decision to issue the permit is content neutral? That's pretty solid. The leading case here is Cox v. New Hampshire (1941) (upholding the convictions of sixty-eight Jehovah's Witnesses for parading without permit).

        In Short:
        Yes, it's feasible that a Court would uphold the refusal of a permit as constitutional, provided the Court found that the prohibition was not content based.

        • jwz says:

          Wow. Thanks, interesting stuff.

          But, I guess I'll believe it was a content neutral decision when then cancel the St. Patrick's Day parade next month. (NYCLU)

          • Precisely the correct question - the state should have a burden of demonstrating why, once they have opened up that particular public forum, one group gets priority over the disapproved group. I don't know this case, or whether the Puertor Rican parade persisted despite past sexual assaults. I can look up the decision and review it, but all I really learned in ConLaw is this: The Constitution is whatever the majority of the Court say it is, your rights are mythic constructs and the notion that resistance can achieve ends prevents outright revolution.

            But enough Marxist ranting.

            Another question of interest is this: how is it that restrictions of leisure activities aren't constitutionally invalid within the First Amendment's freedom of association? Zoning ordinances against various establishments (pool halls, bars, nightclubs) are frequently justified in the name of curbing or controlling crime or social irresponsibility, and typically (where the venue is privately owned) "State police power" would grant the state expansive authority to regulate through zoning, licensing, antinuisance, fire codes, etc. Such ordinances aren't content neutral - they're based upon the nature of the establishment; so how are they constitutional?

            I haven't really reviewed this question for an answer. There's a long line of cases around nude dancing, and my Prof. just applied those to my query about how it is that a city can 'crack down' on leisure establishments even with time-place-manner restrictions. Such restrictions must be justified without reference to the content of the regulated speech,narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels. Even if I were to cede the first two, what happens with the last portion of that test when applied to nightclubs?

            Not that I'm optimistic I'd find much support in case law - We're living in an age where the DEA sought to enforce restrictions on "infant pacifiers, glow sticks, flashing rings, vapor rub products, vapor inhalers, dust masks, and masks of any kind" within a club by virtue of their association with drugs.
            It's more theoretical, and the majority of support would be found in dissens to the strip club cases.

            Ambulatory food for thought.

            • jwz says:

              Having spent six months fighting to get permits to operate my nightclub, those questions are close to my heart.

              I really wish I had a changelog of the SF Police Code so that I could see what year these rules were introduced. From reading them, they really smack of prohibition and "the demon Jazz." (I was going to link to one of the funnier parts on the site that has the codes online, but of course, those links aren't even working any more. How can we expect them to manage changelogs if the aren't even competent to publish flat files? Good thing I saved copies of the good stuff.)

      • Actually, you're somewhat describing "strict scrutiny", but strict scrutiny analysis only applies for content-based speech prohibitions. In the case of non-content based restrictions you have mid-level scrutiny - "important" (as opposed to "compelling") objectives achieved, means used "substantially" (as opposed to "necessarily" related.

        So step 1 is to determine whether the restriction is content-based or content-neutral (Ask "does the restriction apply if the people spoke in an imaginary language?" - that's the test I use).

        • bitwise says:

          Yeah, I shouldn't have glossed over that bit. The hand-waving part that I didn't explain was that it's my hope that judges would see that denying march permits based on the fact that they're political or based on the fact that they want to protest near the U.N. can effectively be content-based. I fail to see how denying a permit because it's political and wants to go near the U.N. can be regarded as anything but content-based. But maybe my judgement is clouded because the policy makes me furious.

    • For someone without legal training, that was a sophisticated answer (better than I can do at 3am, con insomnia).

      The government can restrict content-based speech, and does so frequently (obscenity, slander, libel, fraud, etc.). You generally got the right answer, but better to state it in terms of probabilities/likelihood of action found unconstitutional:
      -- If the action is "content-based," the action will generally be subject to strict scrutiny; the action will rarely be sustained.
      -- If the action is "content-neutral", the government's action is subjected to a much less demanding standard, and is thus much more likely to be upheld.

  6. freiheit says:


  7. loic says:

    uhh - same reason a supreme court orders that votes not be counted?

  8. belgand says:

    Ironically by denying the right to march they've actually helped them. This has achieved much greater visibility to a much larger audience than the march ever would have. Anyone remember the march in DC by non-theists a while back to demand rights (by and large it's only not considered acceptable to discriminate against another religion and most people think that atheists, deists, agnostics, etc. fall outside that) and better treatment in general. Not likely unless you already cared about it from one side or the other or lived in the area. This is a similar case except it would have gotten some minor recognition in the press because of the global effort and NYC or DC are used to stand in for anyplace in the US for things like this... sort of the way Americans stand in the one or two cities they know in any foreign country.

    Instead a lot of people know about it. It's a civil rights issue, it's an anti-war issue, it's something that will get more people behind it and involved than the march itself would have and for that... thanks.

  9. justinmm2 says:

    ...satisfies me

    This was been a subject of relatively mild debate amongst the Volokh conspirators over the weekend. From a legal perspective, it looks like a case of a content-neutral restriction, as opposed to content-based. In other words, the defense for denying a permit is that it is a security risk for that many people to be near that site, no matter what they believe.

    I sort of have mixed feelings on this. While I've accepted the explanation I linked to, on the other hand, it makes me think "Well, what if it were the White House?"...

      • justinmm2 says:

        interesting. going back to my earlier remark about "what if this were the white house?", i think that is a more interesting question than i intially thought.

        pick any political landmark.

        the liberty bell. the washington monument.

        whatever. i wonder if it could be argued that it's content-based due to the protestors being denied a permit on the basis of location. A hypothetical example:

        "No, you can't march near the Liberty Bell. It's an important landmark, and nothing can be allowed to happen to it."

        Based on the fact that people choose their demonstration sites based on their political sentiment, I wonder if one could argue it is indeed content-based.

        Just a thought.

        • darius says:

          Interesting question. My feeling is that political vs. nonpolitical is clearly content-based, while the locations are more of a grey area -- the argument would have to depend on the specifics of the case. (ianal)

  10. "What's the word for this emotion I'm feeling, halfway between baffled and angry?"

    It's flustered.

  11. soul4rent says:

    I can see a permit for a black bloc protest being denied. Or any other protest where the participating organizations have a history of property destruction.