How Local Governments Are Chipping Away at the First Amendment

That Amendment is unequivocal when it states that Congress shall make no law. Lesser government powers can make as many as they like.


Paul Ryan got to speak at Christopher Newport University the other day. People who don't like Paul Ryan did not. 

Oh, they wanted to. The Feminist Alliance had hoped to hold a protest rally at the college in Newport News, Va. The Gay Straight Student Union also had hoped to say a word or two about why the Romney-Ryan ticket is wrong for America. But they didn't get the chance. CNU's rules require student groups to ask permission 10 business days in advance of any demonstration. Ryan's appearance was announced just one business day in advance.

Restrictions such as CNU's are often defended as neutral "time, place, and manner" rules designed to maintain order rather than impose silence. But often they are not neutral in effect—as a headline in the Hampton Roads Daily Press illustrates: "Paul Ryan Plays to Enthusiastic Crowd at CNU." The crowd might not have seemed so enthusiastic if the protest had been allowed. (The newspaper wrote a separate story about the protest denial.)

But then, if the protest had been allowed at CNU it might not have been seen anyway. The public university permits demonstrations only on its Great Lawn, and Ryan's event was being held at a concert hall elsewhere. CNU now says it will revise its policies. Yet many universities have restricted the First Amendment to such "free-speech zones." In doing so they have blithely ignored a point captured well by a bon mot from Barney Frank: "As we read the Constitution," he and some colleagues once wrote to Attorney General John Ashcroft, "the United States is a free-speech zone."

Nice try, Barney. But tell that to Bob Wilson, the owner of Central Radio inNorfolk. The city is trying to seize Wilson's land—and that of several others—in one of those eminent-domain deals that have provoked a richly justified backlash across the country. Once it condemns the land, the city will hand it over to a foundation run by Old Dominion University, which will then turn it over to private developers. The city's housing authority is collecting a commission on the sales.

Wilson put up a sign on the side of his property protesting "eminent domain abuse." Well. Norfolk officials do not like to be sassed by people whose property they are confiscating. They threatened Wilson with fines of up to $1,000 a day for improper signage. A judge declined to issue an injunction, so down went the sign. Once again, ostensibly neutral laws effectively have silenced political speech.

Kim Houghton's sign was not the least bit political. But it, too, had to go. Houghton—the owner of an Arlington, Va., dog-grooming company—painted a mural on the side of her building. The mural, which depicts cartoon dogs cavorting, faces a doggie park. Arlington officials called it an advertisement and said it was bigger than the 60 square feet allowed by law. For some ungodly reason, commercial speech is less protected than other kinds. So Houghton must paint the mural over. As long as she paints flowers or ducks or, perhaps more fittingly, sheep—anything except dogs—Arlington will not object. 

Nor will Fairfax County object any longer, at least for now, about the sign outside the Church of the Good Shepherd. That  church recently replaced its old sign—the kind with letters you change by hand—with a new electronic one. Several weeks ago a zoning investigator with a lot of time on his hands sent the church a letter noting that the new sign had displayed three different messages within a 24-hour period—und zis ist verboten. Like a proper bureaucrat, the inspector resorted to the passive voice, in which things happen without human involvement: "It is noted"—not, mind you, "I noticed"—"that the screens changed more than twice in a twenty-four (24) hour period. This changeable copy LED sign is considered a prohibited sign."

The church sued, and the county backed down—sort of. It now insists merely that the sign's message change at a "reasonable interval," whatever that is. But that insistence is, itself, unreasonable—because the government has no good reason to limit the frequency of messages on the sign in the first place. 

Reasons, yes. There are always reasons. And because there are always reasons—and because the courts, which should act as checks on the other two branches of government, often act as their advocates instead—the First Amendment frequently gets short shrift. That Amendment is unequivocal when it states that Congress shall make no law abridging the freedom of speech. Lesser government powers, apparently, can make as many as they like, so long as they come up with some kind of excuse.

It is noted that this is a flaming disgrace.

This column originally appeared at the Richmond Times-Dispatch. 

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  1. The Gay Straight Student Union also had hoped to say a word or two about why the Romney-Ryan ticket is wrong for America. But they didn’t get the chance. CNU’s rules require student groups to ask permission 10 business days in advance of any demonstration. Ryan’s appearance was announced just one business day in advance.

    I never went to college, so I admit I’m going out on a limb here, but help me out college grads– weren’t a lot of these rules essentially created by pressure from student groups who wanted to censor or limit the speech of other icky student groups that were unpopular or politically incorrect? Student groups that tended to wave 6″ American flags and go to church on Sunday?

    1. I think a lot of those rules were enacted back in the 60s, when protests could shut a school’s business down. Though I don’t doubt that enforcement these days often has some viewpoint discrimination built in.

      All levels of government are working on increasing their power at the expense of the individual. It appears to be a political and sociological law of some sort.

      1. It appears to be a political and sociological law of some sort.

        Hmm. It appears that we need some sort of legally binding document that says that they shall make no law. A man can dream, I guess.

    2. I don’t know, but I never heard anything like that. But as far as I know the school I went to had no such rules (or nobody paid attention to them) and idiotic student activism was one of their selling points.
      ProLib’s explanation seems more plausible. Back then campuses were being totally shut down by protests (though I am still not sure what not going to class had to do with Vietnam.).

      1. Seems ironic that that free speech was getting shut down by rules right in the middle of the free speech movement. So, these students who were part of the free speech movement didn’t notice these signs going up behind their protest as they celebrated their victories for free speech?

        That’s like libertarians winning a major battle in the drug war while a whole host of new laws creating greater restrictions for drug laws are being enacted… oh wait…

        1. Not very surprisingly, the issue all stems from government offering educational services in the first place. Without that, the school could simply define the rules for its guests and invitees.

      2. As somebody who has lived his life on the edges of academia (my Father was a Professor), I can say that the restricted ares and speech codes date from the time in the 1980’s when Conservative student groups were beginning to organize and make use of the tactics that Anti-vietnam war groups had pioneered. Naturally the faculty and administration of the schools in question were horrified. It was Social Justice when Liberal students disrupted the campus. It was rank hooliganism when Conservative groups attempted to do the same thing.

    3. Student groups that tended to wave 6″ American flags and go to church on Sunday?

      As a university student, and now university teacher…I have never seen such an animal.

      1. look at Vanderbilt; its dispute is with bible-based groups. Look at campuses when a known conservative shows up to speak. Maybe your school is different, but speech codes zones sure seem to be in place to deter the right-leaning.

        1. That’s how these rules have been abused.

          This is not necessarily the origin of the rules.

          Having gone to college when a bunch of people took it upon themselves to protest Apartheid in South Africa by trying to keep college students awake in our dorm rooms, night after night, for months, in California, I sure can’t say I oppose “time, place and manner” restrictions, in principle…

        2. Oh, I believe you. It’s just that I’ve never seen a “conservative” student group.

          I’ve heard that we have Young Republicans on campus, but I’ve also heard that Bigfoot makes an appearance near the dorms from time to time.

          1. Well, young conservatives go to college somewhere.

              1. Young conservatives are too busy going to school for an actual purpose. Engineering, comp sci, math, business, pre law, pre med, etc.

                When you’re a psych or communications or gender studies major you have plenty of time to do silly little protests. Passing chemistry requires actual studying.

                Note, for the record I was a liberal arts student. I’m just honest when I say that my coursework was in class bull sessions and easy to write papers.

    4. the short answer is an emphatic yes. The rules are usually aimed at conservative groups, speakers, points of view. That turnabout may be amusing does not make it right. But your point is accurate.

    5. No, I think the restrictions were created by pressure from students who wanted to go to college and not be prevented from doing so by mobs of chanting douchebags.

      Many “protests” are intentional nuisances, and involve mob assault. This is not “speech” by any stretch.

      Then there are the campus preachers, a nuisance as well. They get big crowds of hecklers and a splendid time is had by all, except for those in adjacent classrooms, trying to learn and understand Calculus or Chinese.

      I don’t know what the solution is, and the powers-that-be will always abuse rules and laws for their own benefit. However, equating “protests” as they exist, with “free speech” is deeply problematic, too.

      1. Maybe college should be for learning and people could go somewhere else to organize for “social justice” and protest shit.

        1. Why I like online universities.

          1. But do they attract trolls?

    6. I spent a lot of years at a university between undergrad and grad school, and the only thing I can come up with is keeping the crazy fundies away telling every passer-by that he/she is going to hell.

      That and anti-abortion protests.

      But yes, it’s all politically motivated and should be abolished.

      1. It really depends on the particular school.

        Some places are magnets for big marches and campouts on the quad in the name of some vague (or dubious) cause. And blocking someone’s passage through a public space or thoroughfare is hardly “peaceable assembly.”

        Some protests are quite coercive.

    7. My experience is that it all grew out of the PC movement that took over campuses starting in the late 80’s.

      1. What are you, an Apple zealot? 😉

    8. No, they do this through funding decisions on how to spend student fee monies.

  2. You know who else spoke German and railed against the passive voice…

    1. Friedrich Engels?

    2. Nietzsche?

    3. Perry White?

  3. It appears to be a political and sociological law of some sort.

    It’s like some sort of reverse entropy. Power and control aggregate themselves.

    1. No, that’s regular entropy, as it degrades the system as a whole.

  4. That fat broad in the opera with horns on her helmet?

  5. I’m still trying to figure out what that sign is supposed to mean. I really can’t figure it out.

    1. “Fuck you, that’s why.”

      1. I couldn’t even get that much from it. What does selling stuff have to do with anything?

        1. What does selling stuff have to do with anything?

          It’s considered to be speech.

          Citizens United much?

          1. The way the first amendment has been interpreted really irritates me. Speech should mean speech, i.e. people opening their mouths and saying shit. Press should encompass all forms of mass communication (such as old fashioned publishing, the internet and political advocacy that is not speech). Selling stuff on the (public) street should also generally be allowed, but has nothing to do with free speech or press.

            Trying to cover all communication with speech and pretending that the press just means legitimate journalists really fucks the whole thing up. Money is not speech. But money is generally necessary to produce press, which is just as strongly protected as speech.

            1. I’d like to see something like

              Congress shall make no law that interferes with the voluntary exchange of goods and services between consenting adults.

              which would be cool until the Supremes interpreted “no” to mean “any”.

              1. “The exchange of goods and services between consenting adults is an absolute right of all Americans, and shall not be infringed upon by any governmental body.”

    2. I thought the sign was implying that if you want to sell drugs or sex or something otherwise illegal in the “free speech zone” and the government will neither encourage or discourage your action.

  6. But, but, Incorporation to the states via the 14th Amendment! Or does that only apply in favor of the 13th Amendment and against all others?

    1. The 13th applied to states all by itself.

      1. Good point. So basically, incorporation is a tool of the government at this point, since it limits the 1st, 9th, and 10th.

  7. I’m still trying to figure out what that sign is supposed to mean.

    “When I want your opinion, I’ll give it to you.”

  8. I’m right next to CNU and it does not surprise me one little bit that they would do something like that. CNU has sprung from nothingness of community college largely due to the efforts of its president, former Senator Paul Trible (R). Trible is a GOP creature and his political fundraising skills have largely contributed to CNU’s rise. That Trible would not have a firm commitment to free speech is completely unsurprising to me.

  9. Fuck zoning laws. I will paint a big black cock on my house if I want to.

    1. I don’t see anything wrong with that. It would be charming in a rustic sort of way

      1. Hyperlink was unnecessary. Your reply was wit, and could stand on its own.

  10. My favorite college protest of a speaker was when Madeline Albright came to speak at my college and the protesters and hecklers were accusing her of genocide because of the periodic bombing of Iraq that was happening at the time.

    1. The only time I was remotely tempted to go protest was when McNamara came through doing his mea culpa tour. I fucking loathe him.

      1. Dude, it was all dominos all the way down. Give Robbie a break.

  11. I’m sure the changing sign concern has to do with driver distraction. I’m sure the ordinance contemplated animated signs or ones that changed every few seconds as dangerous, and they figured no other type of sign would change more often than daily.

    1. It is a ridiculous justification. Absolutely anything can be distracting to people who can’t figure out how to drive, including road signs.

    2. PA DOT has such a regulation with that as it’s justification. However, businesses that are advertizing their own business on the sign are exempted, so I can’t understand how their justification is being rationally applied.

      DRyS – you are correct about that. Having worked briefly for the DOT doing work-zone traffic control, no one reads the road signs, and adding more has no effect on driver behavior.

      1. Oh, so it’s YOU. Look here, road signs interfere with my aiming my vehicle at construction workers. Quit putting them in my way. y’all could fuck up a free lunch.

  12. Having worked briefly for the DOT doing work-zone traffic control, no one reads the road signs, and adding more has no effect on driver behavior.

    When the “Road Work Ahead” sign is ten fucking miles away from any work which might actually be in progress, it’s pretty easy to ignore.

  13. I think the core problem here is that in the past various authorities have been unable or unwilling to clamp down on protest behavior that is clearly illegal, so they have come up with ‘content neutral’ rules that let them ban most protesting.

    Various Liberal causes have just LOVED invading a speaker’s venue and shouting him down. That SHOULD have gotten them arrested for trespass and disorderly conduct; they have no right to pre-empt somebody’s audience. But the authorities were too sympathetic or too gutless to go that route.

    Lots of cause protesters like to throw noxious substances at people as ‘symbols’ of this or that. They ought to be arrested for assault and jailed; throwing blood or red paint (to name two popular options) runs a very real risk of doing injury. Nobody has a right to ‘free speech’ that is a direct hazard to somebody else. But if local authorities had tried that a lot of people would have screamed bloody murder and taking a stand on “I don’t care what your cause is, you may not assault people as part of you 1st Amendment Rights” would have required a spine.

    So, rather than confront the real issues (protesters behaving badly) the authorities are trying to ban protesting as a whole.

  14. I can’t think of any good reason on free speech grounds why a concert hall where a speech was taking place should have been opened to protesters. It undermines legitimate criticism of free speech restrictions when you try to draw some equivalence between, say, banning a business owner from painting a mural on her own building and failing to give disruptive protesters access to the venue of the event they wish to disrupt. That’s not to say protests should be confined to a “free speech zone” during certain times of certain days, but just because the concert hall is on a state university campus doesn’t mean you’re entitled to walk into the event and act like an asshole, anymore than you should be entitled to storm classrooms and disrupt other students from learning, or from blocking roads or sidewalks from being accessed by others. The right to free speech doesn’t guarantee the right to an audience or the right to get your ass kissed.

    1. Nice last sentence. Left liberals would disagree.
      Of course it’s been a double edged sword for them so, like the crybabies they are, they run for their nannies.

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