By Seth Richardson
Mayor Bach is wasting taxpayer dollars and staff attorney time trying to figure out how to pander to the complaints of business owners in the downtown area who are fed up with the shenanigans of the Occupy Wall Street protesters. Business owners are complaining that protesters are ruining their businesses with their continued presence, and they want the Mayor do to something about it.
Fortunately, Mayor Bach already has adequate authority under existing public order ordinances and laws to keep the Occupy Wall Street protests, or any other protest or rally under appropriate control to protect the health, safety and welfare of the public. What he does not have is any power or authority to suppress the political speech of the Occupy protesters in order to protect the economic interests of the merchants of downtown Colorado Springs.
Mayor Bach is having his staff attorneys work on some sort of “free speech zone” regulation that would attempt to relegate political speech to out-of-the-way locations so as to prevent them from disrupting commerce. That he’s even entertained the notion demonstrates a serious lack of constitutional knowledge and understanding on the Mayor’s part. The simple fact that any elected official ought to know is that the entire surface area of the United States is by law a “free speech zone,” and one of the only ones left on the planet. We must all vigorously defend against every attempt by government to change the presumption that each of us is free to speak and express ourselves in a peaceable manner wherever we are, particularly on public property, because failing to do so will lead to a complete reversal of a fundamental tenet of our Constitution.
The Constitution does not give Mayor Bach or anyone else the power or authority to flatly prohibit speech on any public property anywhere under any circumstances. If a person has the right to lawfully occupy a public space, that person has the right to lawfully engage in free speech and expression and government cannot simply silence him. To grant Mayor Bach the power to silence citizens on public rights-of-way by establishing “free speech zones” and restricting speech to such areas as the government deems appropriate is neither reasonable nor constitutional, it’s pure idiocy unworthy of our Mayor, and we should all stand with the Occupy protesters to defend the right to freedom of speech so long as such speech is exercised lawfully and peaceably.
First Amendment jurisprudence holds that the government cannot lawfully discriminate against any particular type of otherwise lawful speech based on its content. Content-based review, discrimination and prior restraint on free speech is flatly unconstitutional, and the Supreme Court has said so in no uncertain terms. Therefore, if the Mayor restricts free political speech to some specified area, this means that no one will be free to speak anywhere else, regardless of the content of their speech. This is too ridiculous to even contemplate as it would prevent people from saying “hello” in passing outside the authorized “free speech zone.”
It may seem silly to even suggest that this would be the result of Mayor Bach’s notion, but because prior-restraint content-based regulation of speech is unlawful, that’s exactly the construction that would necessarily be given to such a regulation. This would of course mean the ordinance’s immediate rejection by the courts, making the whole exercise one of futility and embarrassment to the city and to Mayor Bach.
But that does not leave Mayor Bach helpless to control the activities of protesters downtown.
What the Occupy protesters refuse to acknowledge is that their right to engage in free speech and expression is not limitless, and the government has the power and authority to reasonably regulate the time, place and manner in which free speech is exercised. Just as the Occupy protesters cannot chant and wave banners in a courtroom or engage in disruptive behavior at a City Council meeting, their activities on public sidewalks and in public parks can be reasonably regulated as required to maintain public peace, order and dignity.
This means, for example, that erecting camps on public land can be prohibited, as can obstruction of sidewalks or access to private property, such as storefronts. Disruptive behavior such as spitting, harassment, disorderly conduct, assault or other breaches of the peace against passers-by are already unlawful and can be enforced by the police. Parks can be closed at night if health, safety and welfare issues make it reasonable to do so. And the regulations needed to control such activities already exist and have been well-tested and approved by the courts. All the Mayor needs to do is direct the Chief of Police to neutrally, objectively and firmly enforce the existing ordinances.
But Mayor Bach cannot constitutionally prohibit individuals from engaging in free political (or other) speech, or relegate the exercise of free speech to specific places merely to protect the image of downtown or the profits of business owners.
© 2012 Altnews