Free Speech: RIP

July 22, 2008


“We can change the world!

Won’t you please come up to Denver.

Somehow people must be free.

Won’t you please come up to Denver; show your face.

Won’t you please come up to Denver, no one else can take your place

If you believe in Freedom,

If you believe in justice,

Let a man live in freedom.

Rules and Regulations, who needs them?”

— Lyrics, “Please Come Up to Denver”

(an invitation to Americans \to show up and demonstrate at the DNC in Denver, 2008)

View the “Please Come Up to Denver” Invitation Here!

The Festival of Democracy

Across the blogosphere, in the newspapers, in the coffee houses, dorm rooms, television screens and community meetings—the word has went out: Come up to Denver during the 2008 Democratic National Convention, speak your mind and join the festival of democracy.

Political conventions in America are singular events. All the leadership of the Democratic or Republican Party will gather together in one place for several days, to confirm their party’s policy directions and leadership team for the next four years. Media coverage is intense, as thousands of reporters from across the world descend on the convention-hosting city. Millions of Americans follow the events on TV, the newspapers and on the internet—a degree of public attention to a political event that is unusual in American politics.

So it is not surprising that thousands of citizens also show up during a political convention, intent on sharing their point of view, and participating in the democratic process with demonstrations, marches, disruptions and similar events meant to get the attention of party leaders and the voters. This year, in Denver, demonstrations against the war in Iraq, against recent trends eroding constitutional rights, and in favor of immigration rights can be expected to fill the streets. Organizers are calling it a “festival of democracy,” an unpredictable explosion of street energy and direct civic action that will look very different than the carefully scripted political speeches in the convention hall itself.

The Free Speech Cages

In response to the coming “festival of democracy,” Denver officials have decided to follow the example of Boston during the 2004 Democratic National Convention: protestors and others wishing to speak out on the street will be put in chain link cages behind razor wire, police will search and supervise all protestors possible, and demonstrators will not be allowed to speak anywhere near the actual democratic convention events. The city has declared a “free speech zone” to consist only of a metal cage located 700 feet from the convention itself; all other locations near the area will be a free speech graveyard, with protestors arrested and moved off in paddy wagons.

A Vision of Denver’s “Free Speech Zone”:

Will Protestors Have to Endure Conditions Similar to this Boston 2004 Free Speech Zone?

But the First Amendment to the Constitution is clear, stating that officials

shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Considering the clear language of the First Amendment, how is it that cities like Denver and Boston get away with ordering all citizens who wish to speak out into tiny, guarded, metal cages, hidden away far away from political leaders? How is this not an abridgement of free speech?

Who Wants to Speak?

Justifying restrictions on free speech has a good deal to do with official interpretations of the intentions of the speakers to create a public disruption. Yes, people have a right to speak, officials will agree—but not when that speech can create public disorder or foster violence. And that’s just what many officials think demonstrations and public speech during the national convention is likely to do—foster disorder.

In drawing this conclusion, officials point to the provocative language of (some of) the demonstration organizers themselves, and point out that tens of thousands of people descending on Denver to speak out during a national convention is a recipe for disorder that calls out for the careful regulation of where people can and cannot demonstrate. Indeed, it’s very clear that many people are expressing an interest in speaking out during the Democratic National Convention. Any quick search of the web will turn out hundreds of leads on protest groups, planned events, advocacy for direct action of all sorts, etc. As just one example, here is some information posted on the Students for a Democratic Society (SDS) website, advertising the Denver events to come (it is interesting to note that SDS originally hails from the 1960s, when it served as a leading group organizing protests and demonstrations across America at the time).

On the SDS website, viewers can see that the range of issues that will be covered by demonstrators during the DNC are immense, while the range of tactics (‘over the top theatrics,” “disrupting the flow of delegates to the DNC,” “shutting down traffic intersections”) sometimes goes beyond mere speech and borders on what officials might call disorderly conduct and incitements to violence.

[We seek] a clear victory against the Democratic Party and Republican Party, in these uncertain times, gives radical communities a unique opportunity for exposure as a clear alternative to the two party system and the liberal left.

If we, as a radical movement, are going to attempt to pressure the Democratic Party candidates, the time to do so is before they are elected. We can’t roll over and wait until they are in office….

Across the country, groups have been talking–and talking seriously–about disrupting the DNC by means of direct action…In the face of the last eight years, let us not forget the prior eight year Democratic presidency of Bill Clinton, which brought us NAFTA, 500,000 dead Iraqis, welfare reform, militarization of the US-Mexico border, etc.

For SDS, the call to disrupt the DNC (as well as the RNC) offers a tremendous opportunity to plug into what will likely be a major mobilization…The direct action framework will allow SDS chapters to work with those engaging in similar tactics, both within and outside SDS. Finally, chapters are free to theme their actions how they see fit and there could conceivably be SDS actions highlighting everything from the role and complicity of the Democratic Party in the occupation of Iraq, to immigration and poverty, to the rising cost of tuition. Regardless of the themes and tactics chosen, imagine the excitement that we would all feel if SDS held down a few intersections and played a key role in shutting down the DNC… *

[Some of the planned actions are]


March Against Occupations and Militarization! Begin the day with a massive anti-war march. We’ll be in the streets in solidarity with all who oppose imperialism and its tools of war & occupation.

Space Reclamation: Following the march, we’ll reclaim space somewhere in Denver. In a city under police occupation, we’ll take space back from the capitalist elite and create our own autonomous space, highlighting our ability to create horizontal systems of organization. While celebrating, we’ll get to know each other and our community. We’ll tell stories, party, and conspire. Not forgetting that profiteers of imperialism use Denver as a headquarters, affinity groups are encouraged to autonomously target these corporations.


March Against Prisons: Free All Political Prisoners! A morning Freedom March demanding an end to the prison industrial complex and freedom for the many political prisoners currently incarcerated for their acts in defense of the earth, animals, and fellow human beings.

No Business As Usual: In the evening, clusters, affinity groups and individuals take direct action against major fundraisers, delegate parties, restaurant outings and corporations using the DNC to sweeten their position with the party. Picture restaurants, hotel lobbies, theatres, and other mid-sized venues: Opportunities abound for subversive pranks, over-the-top theatrics, anti-capitalist extravaganzas, and whatever else you can think of.


March Against Walls and Borders: No One Is Illegal! A historic convergence of Latino and Chicano communities, Immigrants and their Allies will be taking place in the morning. We will be in the streets making connections between the walls that separate nations, people, genders.

Blockade the Spectacle: We Vote NO! Delegates will be meeting in the afternoon to finalize their platform and we will be standing in their path. Coordinated technical blockades, street theater, and other diverse actions will shut down the flow of delegates to the Pepsi Center while supporting those trying to infiltrate their messages inside. As the DNC reaffirms its agenda of co-optation, subverting democracy and protecting corporate and imperialist powers, we will bring their party to a halt.


Actions and Alternatives: No Warming! All day creative direct action to stop the direct causes of global warming and the corporations profiting from environmental destruction. Let’s demonstrate alternatives so that people can see another way of living opposed to our consumer lifestyles which are destroying the planet. Possibilities include: shutting down polluters, targeting corporations in Denver funding Democrats and destroying the planet, bike blocs, guerrilla gardening, simplicity enforcement, consumer re-education, and anything your creative little hearts can think of to show the world another way to live.


Media Savvy Actions: End White Supremacy! Today we will engage in visually stunning, media attracting actions targeting the Democrats’ complicity in racism in Denver and nationally through gentrification, police brutality, criminal injustice, the prison industrial complex, etc. We will target institutions and corporations that force US imperialism and racism on the rest of the world, as well as those that inflict it upon us.

Tonight we will party, sleep, and support our comrades before heading to Minneapolis to disrupt the RNC…

The Supreme Court On Restricting Free Speech

Can Denver officials take preemptive action to stop many of these planned demonstrations from occurring? Can they make street protest during the DNC illegal and demand that all such events occur only at pre-approved times, along city authorized parade routes, and in city-authorized free speech cages?

Today, the courts have said that city officials can indeed do all this. Becauses the courts have recognized that speech is sometimes directly connected to public disorder and even violence that they have allowed officials to restrict many forms of speech over the years—even though the Constitution clearly says “NO” law shall be allowed to abridge freedom of speech or assembly.

Almost a hundred years ago, the Supreme Court issued its famous Schenk decision (1919), upholding the conviction of a socialist war dissenter who handed out leaflets urging young men to resist the draft. The Court held that some forms of speech are so disruptive to public order and safety (such as urging people to undermine a national war effort) that they can be restricted and regulated. Justice Holmes issued the famous criteria that when speech constituted a “clear and present danger” of substantive evils—it could be regulated.

The Schenk standard continues to be good law, and it has been built on over the years as localities have learned that they can indeed regulate the time, place and manner of free speech, in the interests of protecting public order and preventing substantive evils. In general, courts have allowed localities to regulate the time, place and manner of free speech, as long as the regulations:

  • Are content neutral—that is, as long as everyone is prevented from speaking out in certain times, places and manners, and not just people with unpopular things to say. For example, NO ONE can protest close to the DNC in Denver; Denver’s proposed rules don’t just target anti-war protestors.
  • Are narrowly tailored to serve an important state interest. That is, there must be an important reason for the regulation (such as protecting the city of Denver from general violence and disruption, and protecting convention goers from possible violence)
  • Provide ample alternatives for communication (that is, protestors can speak out somewhere in the city—even if they can’t speak where they want).

Under these standards, cities like Boston and Denver are indeed free to regulate where and how DNC protestors can speak out, to establish approved parade routes and to establish “zones” where free speech will be allowed (so as to minimize disruption on other city residents, and maximize the police ability to supervise protestors and protect convention goers).

On the face of it, such time, place and manner restrictions are hard to argue against. After all, as Justice Holmes famously wrote in the Schenk case, free speech rights do not mean that someone can stand up and yell “Fire!” in a crowded theater.

The problem is that courts have been very deferential to localities efforts to craft such restrictions, a deference which only works if local city officials are truly committed to free speech and are truly interested in only crafting absolutely necessary and fair-minded restrictions on disruptive and dangerous speech. When local officials forget about the constitutional rights of free speech, however, and instead become obsessed with goals such as keeping a city peaceful while the media is in town, promoting local business success, and silencing the speech of unpopular groups—then their speech restrictions become less about protecting society from immediate and significant evils, and more about stamping out free speech altogether.

That’s exactly the path Boston and Denver officials have taken in the last four years—and unfortunately the courts are allowing them to get away with it.

Showcasing a Beautiful and Peaceful City: Denver Restrictions on Free Speech

Consider the fact that in Denver, Mayor Hickenlooper salivates at the possibility of the DNC to lure more business and tourism to Denver—but rarely utters a word about the important role the DNC can plan in actually opening up a democratic dialogue about the future of the city. When Denver was chosen as the host city for the DNC, city officials issued a celebratory press release claiming that

“The Convention will undoubtedly bring with it an unparalleled opportunity for economic development to the Denver metro area and give Denver a unique opportunity to showcase to the nation its natural beauty and the modern, culturally diverse and vibrant city it has become….[the DNC is] expected to draw some 35,000 guests to the region including delegates, politicians and an influx of media and political enthusiasts from around the nation. In addition to the unprecedented media attention on the city, it is estimated that Denver will reap between $150-$200 million in economic benefits.”

What a revealing statement of priorities! The nation is in the midst of a profoundly divisive war, threats of international terrorism abound, the American economy is in a deep recessionary tailspin, poverty and homelessness are deepening, a growing challenge of global warming surrounds us, and our constitutional civil liberties have found themselves eroding. In the midst of such profound challenges, Denver officials do not see the DNC as an opportunity for citizens to join in a democratic discussion about the future of their country, nor as an opportunity for people to rise up and challenge their leaders, but rather as an “unparalleled opportunity for economic development,” giving “Denver a unique opportunity to showcase its natural beauty,” and hoped to bring “unprecedented media attention” and hundreds of millions of dollars economic benefits to the city.

There’s no other way to put it: such sentiments are a pitiful and shriveled view of what party conventions truly could mean to a people. The “media attention” Denver officials seek is not attention to streets filled with activist citizens, nor attention to people using their free speech rights to talk back at officials—no, the attention they want is media cameras focused on a beautiful and sedate city, a nice place to do business and make money. When officials become obsessed with those kinds of goals, we can bet that the level of their commitment to free speech rights is only skin deep.

We would win that bet. Declaring that Denver would remain “open for business” throughout the convention, the Hickenlooper administration has recently announced its restrictions on free speech rights during the convention. Here’s a brief rundown:

1) Marchers will NOT be allowed anywhere near the actual convention itself. A city approved parade route will take protestors nowhere the actual building (about ½ a mile away is as close as marchers will get). Marches will be required to end at an area without any open green space to hold any kind of political rally. And all marches must end by early afternoon—though convention activities take place at night.

2) Anyone seeking a stationary protest will have to go to a separate “free speech zone”, which will be non-accessible to people marching. The free speech zone will be 700 feet from the actual convention hall, so that no delegate to the convention will ever have to actually hear or see a demonstrator. Demonstrations will be held inside of a cage, with chain link fence all about, and amble police surveillance and searches.

Boston 2004: Redux

It’s all reminiscent of Boston, back during the 2004 Democratic National Convention, when city officials forced protestors into a tiny “protest pit,” underneath set of railroad tracks. The protest pit was surrounded by concrete slabs and chain link fence, topped off with razor wire all around, and the then the whole structure was covered with black netting. National guardsmen and local police guarded it constantly. In Boston, this was what Americans’ right of free speech and assembly had come to: a walled off black pit, surrounded by razor wire and police.

How did it all come to this?

The Democratic Convention is a significant political event – indeed, one of the most significant political events in the country,”” said Carol Rose, Executive Director of the ACLU of Massachusetts (speaking of the 2004 Boston “protest pit.”

“We are left to ask why, when careful planning and accommodations were made for the news media, for police, for delegate parking, and for the influential supporters of the Democratic Party, no adequate provisions were made for the fundamental right of freedom of speech.”

“”While the ACLU and other groups attempted to find a suitable location, the imprisonment of organized protesters under the railroad tracks, fenced in and shrouded by netting, guarded by armed police and national guardsman, and surrounded by razor wire is not a suitable location for human life, much less freedom of speech and assembly…We agree with the Court that this is an affront to the First Amendment.

Two views of the Boston 2004 “Free Speech Zone”: Photo 1 and 2

An alternative vision of an American “Free Speech Zone”

In fact, demonstrators in Boston did take their case to court, and the federal judge called the conditions in the protest pit ““an affront to free expression” and a “festering boil.” He noted that he was “irretrievably sad” that he had to issue a “deeply disappointing decision [against] freedom of speech and assembly.” But he still decided to allow Boston officials to force demonstrators into the protest pit, explaining that the federal Secret Service agents had met with him several times urging him to defer to the need for Presidential security.

Ghosts of 1968

Today, in Denver, the same “irretrievably sad” affront to free speech is being replayed at the Democratic National Convention. Part of it is driven by officials’ undying fear at repeating another “Chicago 1968” Convention. Back in 1968, thousands of young protestors showed up at the Democratic National Convention in Chicago to protest the war, to protest racism in America, and to protest that fact that 18-21 year olds couldn’t even vote (and that NO ONE could vote in a meaningful way in the primary process, which party officials ignored when decided who they wanted to nominate). The Chicago police reacted angrily to the presence of thousands of young protestors, many of whom were themselves committed to creating tension and unrest in the streets. Several days of violence unfolded, including a well-documented police riot involving shootings and tear gassings. The Democratic National Convention of that year is now remembered as “The Days of Rage,” and few local officials want to repeat those days.

The ghosts of 1968 have haunted convention host cities ever since. No one wants to be “another Chicago.” It probably only exacerbated the deep fears of Denver officials when some local protestors came together under the name of “Recreate 68,” and used their calls for direct action in 2008 to urge people to rediscover the direct action chemistry of the 1960s.

Yelling “Fire” in a Burning Theater

It is interesting that so many of our leaders only remember the negative aspects of 1968, and can only recall the excesses of free speech, associating free speech with the street disruptions of that time. “You can’t yell ‘Fire’ in a crowded theater,” such officials note, arguing that protestors shouldn’t be allowed to instigate disorder and disruption in the streets.

But what if the theater is actually on fire? What if the building is actually burning down, what if the nation is actually in the midst of an ill-thought out war, what if the economy is crashing, what if the Constitution itself has been ignored by governing leaders? In those kinds of cases, isn’t it proper for someone to stand up and yell “Fire!” , to yell “Enough!” to shout back at their leaders?

That’s exactly what happened in 1968, and it’s what many of the Denver protestors want to recreate on the streets in Denver. It was the free speech activists of 1968 that created the climate of national turmoil that ultimately ended the war in Vietnam, earned 18 year olds the right to vote, and arguably toppled a corrupt presidency (Nixon). The nation WAS on fire in 1968, and the disruptive direct action/speech of activists ultimately changed the world.

That’s exactly why free speech deserves protection, no matter how unpopular or potentially disruptive. In his classic defense of free speech several hundred years ago, John Stuart Mill noted that one very important reason to protect the speech of those you don’t like and even those who are a festering boil on public order is because they may, after all, be right.

If we persist in caging these speakers ,and in forcing them to speak only in hidden locations far away from any actual policy makers and in venues purposely designed to minimize the impact of their speech, we not only shrivel and encage the First Amendment itself—we may also be dooming ourselves to sitting oblivious in a blazing theater, to fiddling while Rome burns.