Saturday, August 20, 2011

Reading the ACLU Policy Guide (Pt. 4)

Series explanation and overview here.

Note: These are my summaries of the 1995 version of the guide, not the policies themselves.

Assembly and Public Protest

Policy 41 — Civil Disobedience, Picketing, and Demonstrations

"Generally speaking, civil disobedience is the willful, nonviolent and public violation of valid laws because the violator deems them to be unjust or because their violation will focus public attention on other injustices in society to which such laws may or may not be related." (Invalid laws being those which are unconstitutional or interfere with constitutional rights.)

First, the ACLU wants to be clear that it has defended and will keep defending people who violate invalid laws, whatever the motivation or circumstance. Civil disobedience — as defined above — is something different.

The ACLU isn't directly concerned with those who engage in civil disobedience and accept punishment to show "their respect for society as a whole and for its laws in general." This policy is more concerned with those who ask the ACLU for help avoiding punishment for breaking valid laws because of their higher motives. "[T]he ACLU believes that freedom to say what one believes, not to do what one wishes, is what is protected by the First Amendment." So long as punishment is not magnified simply because the lawbreaking was accompanied by protest, the ACLU believes the government acts properly. Otherwise we would "change a nation governed by law to one governed by motivation alone."

The government may regulate the time and place of public meetings for reasons of public order, but must do so in a way that is impartial toward the content of such meetings.

Policy 41a — Time, Place and Manner Restrictions

While picketing is a form of protected expression which must be allowed in public places, some restrictions may be justified. For example, picketing in residential areas may have restrictions on the number of picketers, hours, or noise level.

The common areas of shopping malls, shopping centers, and sufficiently large residential complexes can count as public places even if privately owned. Owners of shops within such shopping centers, however, may prohibit expression they don't like. Also, private businesses may advocate for any cause without providing opposing views a voice (unlike the rules for broadcasting in part two of this series).

Policy 42 — Symbolic Speech

Symbolic speech such as tearing up a draft card or burning a flag are protected forms of expression. This policy talks about a Vietnam-era law that made it a felony punishable by up to five years of jail time for mutilating a draft card, which clearly far exceeds any inconvenience to the Selective Service. The law was aimed directly at punishing dissenting views.

Policy 43 — Captive Audience

The government may not require licenses to distribute literature (for free or for sale) or make speeches in public. On the other hand, some restrictions on time, place and manner are acceptable.

Excessive volume or brightness of otherwise free expression may be limited if they are "sensory intrusions so intense as to be assaultive." Of course this depends on context, since what's too loud in a stadium isn't the same as what's too loud in a residential area at night. As always, such restrictions must not discriminate against speech content.

"So long as there is ample public spaces where communication is unrestricted, the government may create and maintain reasonably limited sanctuaries in public places where people can go for quiet and contemplation."

Policy 44 — Heckler's Veto

However annoying, heckling is protected speech so long as it doesn't effectively prevent "the speaker from speaking or the audience from hearing."

Policy 45 — Private Facilities for Public Meetings

The ACLU may work to persuade owners of private meeting spaces to not be discriminatory toward the groups they allow, but recognizes the legal right of owners to do so.

Policy 46 — The Ultra-Right

Public employees who are members of far right groups may not be discriminated against merely for having such an association, and must be judged by their actions on the job. (Apparently there was concern in 1964 that police members of the John Birch Society would not carry out their duties with professional impartiality.)

"Although the democratic standards in which the ACLU believes and for which it fights run directly counter to the philosophy of the Klan and other ultra-right groups, the vitality of the democratic institutions the ACLU defends lies in their equal application to all."

So the ACLU's policy concerning opposition groups is to "vigorously present its [i.e. the ACLU's] position, while defending the group's right to speak."

Policy 47 — Gun Control

"The setting in which the Second Amendment was proposed and adopted demonstrates that the right to bear arms is a collective one, existing only in the collective population of each state for the purpose of maintaining an effective state militia."

Furthermore, the ACLU points at the Supreme Court's "long-standing interpretation" that the Second Amendment's application to individuals is wholly contingent on the extent to which the maintenance of a well-regulated militia is promoted. It's implied here that the role of militia is fulfilled by the police, with the conclusion that only members of the police and military are guaranteed the individual possession of arms.

There is a very interesting long footnote here about a previously included footnote. In 1979, a short footnote was added to state that the ACLU was not neutral, but positively supported gun control laws. In 1980, this was reconsidered and removed, returning the ACLU to official neutrality toward individual gun ownership. "Even though gun control is a desirable social objective, and it would be nice to find a civil liberties rationale for affirmative ACLU support of gun control legislation, the Committee noted that the ACLU has never supported particular remedies for particular crimes, and as such, we cannot support gun control legislation."

The ACLU does oppose restrictions on gun ownership or sales which violate other civil liberties, such as investigation into political views and associations.

No comments:

Post a Comment