First Amendment Law Review
presidential campaigns, public forums, free speech, first amendment
As the 2008 presidential campaign gets underway, the candidates may be tempted to suppress dissent at public forum rallies by using a tactic that Ronald Reagan pioneered and George W. Bush perfected. Under this tactic, the candidate's advance team “privatizes” a public square or public park by securing a municipal permit for the rally date that authorizes the expulsion of any citizen who manifests support for a rival candidate. At a 2004 Bush re-election rally, citizens who held signs opposing the President or opposing the war in Iraq were systematically expelled from a public park by Secret Service agents, who asserted that the Republican Party “owned” the park for the day. Two citizens who questioned their expulsion were arrested for criminal trespass, handcuffed, jailed, and strip-searched.This tactic for eliminating public forum dissent has generated only a handful of reported cases and it has never been successfully challenged. My thesis is that, under the First Amendment, neither the government nor its permittee may effect the viewpoint-based expulsion of citizens from a traditional public forum. If a presidential campaign wants to stage an appearance where every member of the audience has been screened to ensure unanimous support for the candidate, then the event should be held on private property, where the First Amendment does not apply. This article proceeds as follows. In Part I, I sketch the larger First Amendment context in which this tactic should be viewed. It is a context that features two overarching trends: (1) the increasing obsolescence of traditional public forums as a meaningful platform for citizen speech; and (2) the broad range of governmental efforts to eliminate or privatize our traditional public forums. In Part II, I describe in detail how presidential campaigns have employed this tactic and I examine the key cases in which it has been challenged. Finally, in Part III, I offer my own analysis of the tactic's constitutionality.
Kevin F. O'Neill, Privatizing Public Forums to Eliminate Dissent, 5 First Amendment Law Review 201 (2007)