The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

by Tony Guo


Over Fall Break I visited my fiancée in New York City.  As part of my visit we went to Washington Square Park.  We both graduated from New York University and Washington Square Park is a second home to us.  It was the first place I met my fiancée.  Before I graduated the park had undergone renovations forcing the two previous classes and my class to break tradition and graduate in Yankee stadium instead Washington Square Park.  I was curious to see the recent renovations and excited to visit my favorite park.  When we got near the park we saw rows of police vehicles.  We had stumbled upon an Occupy Wall Street protest.

My fiancée and I made our way to the barricaded fountain and in the process received several copies of the same Occupy Wall Street newspaper.  As we left the park to go to the vendor fair nearby I heard a protestor arguing with a resident.  The protestor held a copy of the Constitution and a copy of the Occupy Wall Street newspaper.  The protestor gave the newspaper to the resident who immediately threw it in the trash can.  As the resident moved away, the protestor shouted “you are suppressing my First Amendment right to be heard.”  The protestor having not taken William and Mary Professor Timothy Zick’s First Amendment class was unaware that the First Amendment only prohibits state actors such as a police officer from limiting his right to free speech and not private persons.  The protestors should have said please recycle.



Published in: on November 6, 2011 at 12:01 pm Comments Off on The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

Impunity for Journalist’s Killers

A chilling message was sent to journalists worldwide when all three defendants associated with the murder of Russian investigative journalist Anna Politkovskaya were acquitted this Thursday.  However, this will not be the end of the case.  Attorneys for the Politkovskaya family promised to appeal the decision and Judge Yevgeni Zubov, the presiding judge, ordered today that the case be reopened.

Politkovskaya, a journalist with the Russian newspaper Novaya Gazeta, was killed in her home in October 2007.  She was often critical of the Kremlin, specifically Russia’s policies in the second Chechnyan war.  Originally, the Russian government attempted to reassure the public by appointing the Prosecutor General to prosecute, but the trial was riddled with confusion.  Throughout November 2008, court officials wondered whether to close the court to the press and requests were filed to remove Judge Zubov from the case because of his indecision regarding barring the media from trial.  Moreover, defense attorney Musayez directly contradicted statements from the Kremlin, by suggesting that a government official inside Russia ordered the killing of Politkovskaya.  Very little evidence was presented by the prosecution and it was rather unsurprising when, after only two hours of deliberation, the jury returned a “not guilty” verdict.

The jury’s decision was met with international outcry and pessimism regarding continued political violence under the current Russian government.  This is especially true because the verdict was returned exactly one month after the killing of human rights lawyer, Stanislav Markelov, and reporter Anastasia Baburova.  These deaths have increased worries about the routine killings in the Russian Federation, according to the Human Rights Watch.  The Committee to Protect Journalists (CPJ) reports that Russian is the third-deadliest country in the world for journalists, with 49 killed on the job since 1992.  Twenty journalists have been killed under the current Russian leadership, 16 of which were murdered in retaliation for their reporting.


Published in: on February 22, 2009 at 9:20 pm Comments Off on Impunity for Journalist’s Killers

Ice Storms and Blizzards Don’t Mean We’re Cool (Global Warming Still Happening)

Professor Ryan’s ACS contribution emphasized the importance of the new Green Deal for stimulating the economy and saving the planet. However, recent severe winter storms may have some of us wondering, “This can’t be global warming, is the environment okay now?” The February 15 edition of EarthTalk, the question-and-answer column of E-The Environmental Magazine, responded to this question and their answer seems to be that no, the environment is not really okay now. First and foremost, the column explains that no single storm/season/year can serve as a solid indication of where the environment is heading, and that extremes on either end of the thermometer are a bad sign. And, while the reports of destructive ice and snow and plummeting temperatures are distracting, the overall trend over the last few decades has been one of warming. In fact, the National Oceanic and Atmospheric Administration reported last week that January 2009 temperatures are above the long-term average.

Other reports on this topic confirm that the Earth is getting warmer, despite the low temperatures in the headlines. ScienceDaily’s Monday article on the melting Greenland and Antarctic ice sheet explains the impact warming oceans are having and will continue to have on the ice sheets and, consequentially, on the global sea level. Of course some say that the data on global warming’s cause, even its existence, is not conclusive. There are drastically conflicting views on the issue. Web sites such as the Skeptics Global Warming question the idea, specifically the contention that the earth’s warming is caused by humans. In contrast, a February 10 New Scientist article argues that climate scientists are actually quite certain about global warming and attributes the confusion to inconclusive vocabulary (“virtually certain”, “very likely”, etc.), not inconclusive data.

The cause of global warming, our ability to stop it, and even its existence continue to be debated. However, for those of us who believe that the Earth is in trouble, it is clear that winter storms are not a signal to sleep on global warming.


Published in: on February 18, 2009 at 12:00 pm Comments Off on Ice Storms and Blizzards Don’t Mean We’re Cool (Global Warming Still Happening)

WTF? FCC v. Fox Television Stations

On Friday night, a few of the nation’s leading law scholars argued whether fleeting expletives can be publicly broadcast without a fine.

The moot court was scheduled as part of the Institute of Bill of Rights Law annual Supreme Court Preview. This year’s case, FCC v. Fox Television Stations, featured Tom Goldstein, one of the nation’s top Supreme Court litigators, arguing to uphold a new FCC policy that penalized a single expletive uttered by rock star Bono during a broadcast of the January 2003 Golden Globes ceremony.

Goldstein noted the “increase in the coarseness of dialogue” while arguing that the FCC should have the right to change their policy and administer fines based on context. Justice John McGinnis from Northwestern Law School, commented on a perceived increase in vulgar language due to celebrities racing against each other for news coverage. Accordingly, a discussion of FCC v. Pacifica and George Carlin’s “Filthy Words” routine followed.

In one line of questioning, presiding Justice Linda Greenhouse, a renowned journalist, asked Goldstein why some bureaucrat gets to decide ex-post if a network is liable for a huge fine. Goldstein simply replied, “what Fox calls a bureaucrat is really an expert agency.”


Published in: on October 1, 2008 at 10:05 am Comments Off on WTF? FCC v. Fox Television Stations

Pastors for Politicians?

The Alliance Defense Fund is calling for Christian pastors to begin endorsing political candidates on September 28, 2008—which has been illegal since 1954. The issue stems from the First Amendment’s Free Speech Clause potentially trumping the IRS tax code 26 U.S.C § 501(c)(3), which exempts religious organizations from income tax so long as those organizations do not endorse specific political candidates.

The ADF’s plan is to regain the right of religious organizations to both announce political candidates they support and continue their tax exempt status. The ADF is hoping the IRS will take away the tax-exempt status of those churches participating in the September 28 rally. The churches, and thus the ADF, will then have a cause of action against the IRS. The ADF hopes for a ruling by the courts that declares such tax codes against religious organizations as unconstitutional.

The most notable group against the ADF’s goals is Americans United [for Separation of Church and State]. The AU is in full support of the tax provision, and even has an online “Report a Violation” form to stop “potentially illegal electioneering by religious leaders or groups.”

Although the battle in court has not begun—if it ever will begin—inferences can be made fairly easily from free speech to the Free Exercise Clause, and the IRS tax code to the Establishment Clause as potential strategies by the ADF and AU, respectively.


Published in: on September 23, 2008 at 4:18 pm Comments Off on Pastors for Politicians?


With all of the chatter around the Supreme Court’s recent Heller, Boumediene, and Kennedy decisions, it has been easy to overlook some interesting cases making their way through other parts of the court system. For instance, Center for Bio-Ethical Reform v. Los Angeles County Sheriff Department, No. 05-55294, slip op. (9th Cir., July 2, 2008).

Without going into too much detail, the Center for Bio-Ethical Reform is an anti-abortion organization that works to “expose as many people as possible to the reality of abortion.” In this case, CBER did it by driving a billboard truck with pictures of aborted fetuses around and parking it by a Los Angeles middle school as students arrived for class in the morning. Two deputy sheriffs made CBER move the truck, citing Cal. Penal Code § 626.8, a state criminal statute prohibiting “disruptive entry” on school grounds. The ultraconservative Thomas More Law Center represented CBER in its suit against the L.A. County Sheriff. On Wednesday, the 9th Circuit very reasonably ruled that the deputies violated CBER’s First Amendment rights.

On Thursday CBER issued a celebratory press release that contained this gem: “The First Amendment means nothing if it doesn’t mean the right to show people things they don’t want to see.” That’s not a perfect definition by any means, but I for one am thrilled to see CBER taking the First Amendment so seriously.


Published in: on July 18, 2008 at 1:52 pm Comments Off on Apophasis

Telecom Spying– You Are Still Not Safe

You’re still not safe because there’s still no terrorism exception to the rule of law. That was the message from the Attorney General this week in his address to the Commonwealth Club of California. After his initial remarks (which were on the ongoing effort to fight public corruption) he solicited a question on the debate over retroactive immunity for the telcoms violations of the statutes protecting the privacy of their customers at the behest of the President.

I don’t write this because I expect to change anyone’s mind, this isn’t that kind of issue. I am writing this because I am tired of being talked down to by people who exude a sense of entitlement to conduct themselves as they see fit, the rule of law notwithstanding. We may see legal protection for the telcoms fairly soon – Congress will reconvene on April 14th – but it will be all the more tragic because we won’t be able to hide behind a claim of ignorance like we did with the Patriot Act.

The Attorney General began by explaining, from his perspective, why the telcoms are being sued:

“[The telcoms] are being sued … because they are believed to have responded to the direct assurance by those in authority that the President had asked them to help collect foreign intelligence against foreign targets – we’re not talking about domestic surveilliance … of targets located abroad, and that it was legal”

Wrong. The telcoms are being sued because they broke the law. This is one of the most offensive aspects of the rhetoric being used. What the Attorney General is trying to describe is a legal justification for what the telcoms did. If he is right, there is a good chance that they in fact did not break the law. Fantastic right? So why do we need to immunize them, just let them win in open court. In fact, if the claims are half as frivolous as the Attorney General suggests, the plaintiffs would have been thrown out a long time ago. Later on, he comes back to this, saying “we need and get court permission … to [conduct surveillance on Americans here in the United States],” again saying this is about foreign intelligence and foreign targets. Whatever planet the Attorney General is living on, the lawsuits here in the United States are brought by Americans who claim that THEIR rights have been violated.


Published in: on April 4, 2008 at 11:48 pm Comments Off on Telecom Spying– You Are Still Not Safe

Senate Immunizes Warrantless Wiretapping

Jim Webb, John Warner, and a supermajority of the Senate (68-29), just sold you out. The Senate just passed a bill which would excuse the telecommunications companies for violating the rights that same Senate conferred upon you. Make no mistake, there hasn’t been the slightest suggestion that what they did was legal. Rather, those supporting retroactive immunity for the telcoms suggest that they are entitled to break the law when they do so for the sake of national security. Specifically, when the government asks them to provide your private communications without even trying to get a warrant from a secret court, or complying with the already expansive powers conferred upon it following 9/11.


But the whole national security angle is a farce — the President vowed to veto the very legislation very that would give him access to FISA warrants unless it contained retroactive immunity for his cronies. It is, sadly, understandable, since the power to act outside the law is more valuable than the authority to act within its constraints, but the fact that every Republican senator was willing to wager (See “Update III”) the ability to obtain legal FISA warrants against the prospect of obtaining retroactive immunity for those who broke FISA should be inexcusable in a country that believe it is governed by laws, not men.


Published in: on February 14, 2008 at 2:45 pm Comments Off on Senate Immunizes Warrantless Wiretapping

Abercrombie & F#t@$

Lynnhaven Mall in Virginia Beach has long held a special place in my heart. Whether attending friends’ birthday parties at Aladdin’s Castle Arcade, or hitting up PG-13 movies at the old upstairs theater, Lynnhaven Mall has always been a place that Hampton Roads natives like myself have congregated. Historically, Virginia Beach has been a city without a traditional downtown center, and Lynnhaven Mall has frequently been the most happening place in the area on any given weekend.

And now Lynnhaven Mall has found itself in the national spotlight (thanks, Drudge). Police, responding to a few citizen complaints, entered the Abercrombie & Fitch store at the mall this weekend and took away two large black-and-white advertisements featuring models in various stages of undress (pictured above).

The store manager, who had been warned, was cited for violating City Code 22.31, a crime to display “obscene materials in a business that is open to juveniles.”


Published in: on February 4, 2008 at 12:44 pm Comments Off on Abercrombie & F#t@$

Protests, Tasers, and Yearwood

Over the weekend, thousands of peaceful, anti-war protesters converged on Washington, D.C. in the exercise of their constitutional right to call their government to task.

The media covered the event quite heavily, and what I recall most poignantly from standing in and amongst the crowd, which included Iraq war veterans, was a haunting, and often moving, undercurrent of solidarity – interlaced with something akin to gratitude.  The mood could have been desperate, and in some ways, it was – acts of civil disobedience themselves are acts of desperation; we actively disobey when we feel that irresponsible, detrimental, and degrading policies leave us with the sense that we have no other choice but to disobey.  Nonetheless, there seemed a common understanding that the protest itself, and our very right to protest, was the exercise of a freedom for which we were, and are, grateful.

It struck me as extremely ironic, then, that a student at the University of Florida, Andrew Meyer, was tasered on Monday after being pulled away from a microphone in the course of asking Sen. John Kerry heated questions about the last election and his connection to President George W. Bush.  The student resisted university police, and though the various internet videos open up a host of factual questions, one theme cropping up on the interweb seems to be, ‘Well, what did this kid really do?’ Or more pertinently, ‘Did the police have a right to silence him?’

Though Con Law for 1L’s doesn’t rear its head until next semester, a jaunt around the American Jurisprudence, Second Edition yields some interesting commentary on the relationship between “place restrictions” (such as designated public forums and limited public forums) and constitutional limits on free speech.  A white paper on First Amendment Free Speech and Assembly from the University of Arizona Office of the General Counsel sheds some light on the subject in the university setting.


Published in: on September 19, 2007 at 9:08 am Comments (1)