Are 1st Amendment Areas Constitutional?
I recently saw a concert with a tribute band representing Earth, Wind and Fire. It reminded me of the three branches of the federal government, but I call them Rain, Wind and Ice. These are the three elements that erode mountains and the landscape.
Since our founders gave us the Bill of Rights, a subset of the Constitution, over 240 years ago, Rain, Wind and Ice, the three branches of government, have been busy eroding our constitution and the Bill of Rights. The erosion has been steady, merciless and unrelenting.
1ST AMENDMENT CORRALS WHERE, LIKE SHEEP, YOU CAN BLEAT ALL YOU WANT
One example, among the hundreds of examples, is the erosion of the 1st Amendment, specifically as it relates to 1st Amendment corrals. These are like animal pens where somebody, who claims to have authority backed by brute force, forces other human beings into these corrals or pens known as “1ST Amendment Areas” where they are free to vent, rant, and express themselves all they want. Similar to a corral used for babies and toddlers, where they are placed so as not to harm themselves or bother the adults.
Dave Bundy, son of Cliven Bundy, is a victim of disobedience to the BLM imposed 1st Amendment Corral (see picture). When he refused to confine himself to that corral but instead, filmed the BLM from the soft shoulder of the public highway, he was tackled and beat up by BLM thugs.
Government employees claim that these fenced off zones are necessary for the protection of the protesters or the “free expressers” while at the same time, protecting the greater good of society (as they interpret it).
Free speech zones or 1st Amendment Areas, hereinafter known as corrals, have been used at political conventions and on college campuses for some time under the excuse that protesters can’t simply have a blank check and free reign to say what they want, when and where they want to.
WHAT PART OF “ABRIDGING” DON’T YOU UNDERSTAND?
Constitutional experts claim that it is no accident that the 1st amendment, is first. It is the locomotive for the train of natural (God given) rights that follow in the other amendments. Another person called it the heart of democracy.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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. THE 1ST AMENDMENT
For a simple minded, constitutional originalist like me, the language is plain and simple. Congress (the Rain) cannot abridge the four (4) rights that are enumerated in the amendment. Note: Government does not grant these rights, they are inherent and inalienable just for being born as human beings. Government protects these rights, it does not grant nor regulate them, or at least, that was the intent before the erosion took place.
to reduce or lessen in duration, scope, authority, etc.; diminish; curtail:
to deprive; cut off. Legal experts sum it up in one word: “limiting”
So, the Congress (Rain), the Courts or Judicial Branch (Wind) and the Executive Branch (Ice) cannot limit the right to freedom of speech, unless such freedom of speech abridges the inalienable rights of others, as we shall see.
LET’S BE PRACTICAL: LET’S REGULATE!
The authors of the Bill of Rights knew, without saying, that any right is predicated on not abusing it such that it harms or injures another person without good cause. Like firearms, free speech is not an absolute right that can be used to harm others, unless exercised in self defense or for justifiable reasons. The trick is, who decides what justifiable is?
During the presidential debates, Hillary Clinton, on several occasions, mentioned government’s duty to regulate the 2nd Amendment as well as all other aspects of the constitution. Actually, a lot of people agree with her. Government, or somebody, needs to regulate us because, well, we can’t regulate ourselves. We are not intelligent, mature, responsible, ethical, balanced or wise enough.
Enter Rain, Wind and Ice to the rescue, to provide the regulation of these inalienable rights and their subsequent erosion. After all, the government is full of people who possess all the aforementioned qualities, in abundance, and therefore, are equipped to tell us how to interpret and apply the Bill of Rights.
THE WIND’S (JUDICIAL BRANCH) EROSION OF THE 1ST AMENDMENT
Agreeing with Hillary, that somebody has to regulate (i.e. abridge) the 1st amendment because we can’t trust the people to regulate themselves, then the Supreme Court has handed down several rulings on the limits (abridgment) of the 1st amendment.
Justice Kennedy voted for the free speech claimants an adjusted 74% of the time — hardly an absolutist (nobody really is one), but still a voice for especially broad speech protection. Justices Souter and Thomas were at 63%. The next group consisted of Justices Ginsburg and Stevens, pretty much tied at 58% and 57%. Justice Scalia followed at 52%; Chief Justice Rehnquist and Justice O’Connor were at 46% and 45%. And Clinton appointee Justice Breyer voted for the free speech claimant only 40% of the time.
CORRALING FREE SPEECH
It is obvious that the BLM and other feds did not set up the free speech corrals without first getting legal advice and, unfortunately, the feds use of 1st Amendment corrals are backed by their sisters and brothers in the federal courts.
The 1st Amendment corral at Bunkerville, should be challenged as unconstitutional. Why it has not been challenged, I don’t know. I am guessing because the feds did so many unconstitutional acts, the defendants have to choose their battles according to their budget.
Grayned v. The City of Rockford (1972) summarized the time, place, manner concept: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”
Ward v. Rock Against Racism (1989) held that time, place, or manner restrictions must:
- Be content neutral
- Be narrowly tailored
- Serve a significant governmental interest
- Leave open ample alternative channels for communication
The Court has consistently ruled that the government has the power to impose limits on free speech in regards to its time, place, and manner of delivery. As noted in Clark v. Community for Creative Non-Violence (1984), “… [time, place, and manner] restrictions… are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.
Time, place, and manner restrictions are often linked with the public forum doctrine. The Supreme Court has established three types of forums: traditional public forums, designated forums, and nonpublic forums.
Traditional public forums include public areas, such as parks and sidewalks. These areas have the strongest protections under the First Amendment. Although, traditional public forums are still subject to traditional time, place, and manner restrictions, meaning restrictions must be content-neutral, serve a significant governmental interest, and allow for ample alternatives.
Of course, the feds will claim that they: 1. Have a significant governmental interest to protect federal employees and contractors as they rounded up, injured and killed Bundy cattle and while they destroyed Bundy water installations and 2. The first amendment corral provides an alternative channel for communication and 3. although the public highway was a traditional public forum, the government interest to be unrestricted by protesters along the highway “trumped” the right of the protesters to this strongest of protections.
ADDING INSULT TO INJURY
On top of what appears to be an egregious violation of the 1st Amendment by setting up corrals, is the matter of BLM constitutionality. Even if the 1st Amendment Areas are constitutional, by what authority were they set up? By an unconstitutional alphabet soup agency with an unconstitutional law enforcement arm?
You see, the government very skillfully put all the defendants in court…on the defensive, giving them little chance to go on the offensive. What offensive? To challenge the constitutionality of the BLM! Moreover, where did the BLM get the authority to enforce the law with AR 15’s, grenade launchers, snipers, Cobra helicopters, etc?
With the support of their sister federal employee, Gloria Navarro, the federal government restricted the defendants from going on the offensive and raising these issues.
Thanks to Cliven Bundy and the crowd that supported him, the local sheriff, the one who has constitutional authority, told the BLM to stand down. Dan Love and his BLM thugs refused to stand down and that is what the crowd, Dennis Michael Lynch, Pete Santilli and David Knight met when they went to the wash to retrieve the cattle.
LOW HANGING FRUIT
With the time, energy and money restraints imposed on the political prisoners, it may take the rest of we, the people, to go on the offensive and pick the low hanging fruit of constitutional violations, which are numerous, by the federal government and challenge in court.
However, the federal court is part of the same club as the federal BLM. Therefore, in addition to the federal courts, we need to appeal to the court of public opinion and get more grassroots support.
The federal team will keep the political prisoners gagged, muzzled, shackled, restrained and hampered with court imposed orders and threats while the political prisoners remain in prison or on conditional pretrial release.
It may require, we the people, to raise these issues and go on the offensive against the constitutional erosion of Rain, Wind and Ice.
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