The RNC Will Be A First Amendment Disaster

In lead-up to the Republican National Convention, Cleveland has been getting hit from every side. Civil rights activists have spotlighted the fact that the original security zone around the RNC—the area in which First Amendment activities would be restricted—was the largest ever proposed, covering a 3½-square-mile perimeter. Permit applicants have also dealt with ugly delays, while rightful attention has been drawn to the fact that the Cleveland police department is currently operating under federal monitoring because it was found to have engaged in an unconstitutional pattern of excessive force. Less well-known is that Cleveland also settled a lawsuit last year with the American Civil Liberties Union in relation to an unlawful mass arrest during a Black Lives Matter protest. Cleveland is even facing criticism from the right over its proposed RNC tactics: Those anticipating conflicts between anti-Trump protesters and Trump supporters are questioning whether the city’s security plans will be up to the task of maintaining order.

These are all legitimate concerns and hard to ignore. But the fact is that the First Amendment rights of those seeking to gather in public for political purposes today are weak everywhere. Cleveland is simply hewing to the best practices for managing national political conventions that have been developed since 9/11. The results are predictable: Those coming to Cleveland to exercise their First Amendment rights, whatever their partisan persuasion, will leave frustrated and disappointed. Next week in Cleveland will likely prove to be a sad new low for First Amendment exercise in this country.

The ACLU of Ohio’s recently published know-your-rights manual, while important, only scratches the surface of the complex legal landscape protesters will face. Protesters in Cleveland will have to navigate a convoluted set of temporary regulations and may well encounter challenges from multiple law enforcement agencies. The 2016 RNC has been declared a “national special security event,” and downtown Cleveland has been split into two jurisdictions. In the federally administered “hard zone,” First Amendment activity is prohibited. Only properly credentialed individuals will be allowed after undergoing security checks. In the surrounding 1.7-mile “soft zone,” under the jurisdiction of the Cleveland police, a series of temporary regulations will limit constitutionally protected activities, including parades, rallies, and stump speeches.

The ACLU recently won the suit it filed challenging Cleveland’s original soft-zone proposal. United States District Judge James Gwin’s ruling in the ACLU’s favor only resulted in limited improvements, though. A few additional public spaces and parade slots were made available for demonstrations. The official parade route was lengthened slightly, and the city retreated from a few restrictions, including the proposed prohibition on the use of soapboxes. That’s good, but it wasn’t enough.

While ACLU officials have heralded these changes as a “victory for free speech,” make no mistake: Activists, whatever their political persuasion, will not be able to see any convention delegates—certainly not from the designated parade route, and RNC delegates will not be forced to interact with any of them. Measures like these only reinforce the widespread impression that our political leaders are inaccessible and uninterested in the experiences of the ordinary Americans. What the ACLU managed to secure for those demonstrators who have received permits was permission to protest marginally closer for marginally longer. The improved event zone still blankets a 1.7-square-mile perimeter of downtown Cleveland with a laundry list of temporary restrictions of questionable necessity, including nonplastic containers, canned goods, larger backpacks, and tennis balls. Only two of the city’s public parks and a single speaker’s platform have been made available to groups and speakers, who may only use a hand-held, battery-operated bullhorn.

The fault lies with none of the individuals involved—certainly not with the ACLU of Ohio or Gwin, who sharply questioned the city solicitor throughout the oral argument about the connection between various elements of the plan and the city’s proffered justifications: security and public safety. At one point he asked incredulously, “Well, then how is stopping speeches on street corners … with a microphone or on top of a soapbox, how is that going to alleviate this terrorist [threat]?”

The issue is that existing legal precedent is overwhelmingly in Cleveland’s favor. The First Amendment arguments available to those seeking to take to the streets for political ends are currently so limited that in one recent instance, the lawyers for Occupy Wall Street simply abandoned any reliance on the First Amendment, arguing instead that the Fourth Amendment, which prevents unreasonable seizures of property, protected their encampments. They lost on those grounds as well.

Even where permits have been issued (or are not required), protesters can still be arrested for violations of any other local laws, which in Cleveland include littering and posting signs on public property. Assemblies also risk being dispersed for actual or anticipated disorder, if they obstruct vehicular or pedestrian traffic or the entrances to the hard zone. Ohio is an open-carry state, though, so guns will be permitted outside the most tightly controlled areas. This is ironic, given that a primary justification for the restrictions on movement, speech, and items that can be brought into security zone is the possibility of a terrorist threat.

While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.

The founders were proven wrong about a great many things, but they understood that sometimes people are too angry to express themselves eloquently or even verbally. So, they included the First Amendment’s guarantee of a right to peaceably assemble in order to create a political safety valve. Citizens would be free to express their collective dissatisfaction—to shout, stomp their feet, and throw tea into the Boston Harbor—so that the political establishment could take heed and correct course before it was too late.

This First Amendment safety valve only works if protesters feel its power. The ability to disrupt the ordinary routines of city life or the program of a political convention is the ability to demand recognition and compel attention, and the First Amendment protects these moments of interruption. It’s a shame that this full protection won’t be felt in Cleveland.