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Are 1st Amendment Areas Constitutional?

Even if the 1st Amendment Areas are constitutional, by what authority were they set up?

Are 1st Amendment Areas Constitutional?

Are 1st Amendment Areas Constitutional?

by Loren Edward Pearce

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.


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.


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.


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.


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.


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.


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.


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.


Are 1st Amendment Areas Constitutional?

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6 Comments on Are 1st Amendment Areas Constitutional?

  1. The Preamble to the Bill of Rights makes clear who is having LIMITS and FORBIDDENS placed upon their actions.

    Preamble to the Bill of Rights: “Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
    THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, THAT FURTHER DECLARATOY AND RESTRICTIVE CLAUSES SHOULE BE ADDED: And as extending the ground of public confidence IN THE GOVERNMENT, will best insure the beneficent ends of its institution.”

    I think that part of the problem is that people have problems understanding that the people who SERVE WITHIN our government(s) are not ‘the’ government, just people placed there – elected, hired, contracted, etc – to do jobs that are in writing. That it is the document to which our allegiance and loyalty goes, NOT to any person, nor to any office. Remember that the authority used by all who serve within our government is delegated in writing to either a branch or to an office within a branch, NOT to any person. Instead, as with any business, the position determines how much authority – and it is in writing – that person serving has. What duties are assigned to that position, etc determine just what the person is to fulfill.

    Archibald Maclaine, North Carolina’s ratifying convention: “If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, ‘You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it, and punish you for the attempt.’”

    Daniel Webster: “We may be tossed upon an ocean where we can see no land – nor, perhaps, the sun or stars. But there is a chart and a compass for us to study, to consult, and to obey. That chart is the Constitution.” He also said: “Is the Constitution worth preserving?” He said, “Then guard it as you would the very seat of your life. Guard it not only against the open blows of violence but also against that spirit of change.”

    From some more modern voices such as Justice William Brennan, Texas v. Johnson (1989): “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”

    Justice William O. Douglas, Terminiello v. City of Chicago (1949): “The vitality of civil and political institutions in our society depends on free discussion… It is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.”

    J. Reuben Clark: “God provided that in this land of liberty, our political allegiance shall run not to individuals, that is, to government officials, no matter how great or how small they may be. Under His plan our allegiance and the only allegiance we owe as citizens or denizens of the United States, runs to our inspired Constitution which God himself set up. So runs the oath of office of those who participate in government. A certain loyalty we do owe to the office which a man holds, but even here we owe just by reason of our citizenship, no loyalty to the man himself. In other countries it is to the individual that allegiance runs. This principle of allegiance to the Constitution is basic to our freedom. It is one of the great principles that distinguishes this “land of liberty” from other countries”.

    • You got that right! Government interest is not the people’s interest. Government has many Dan Loves, Harry Reids, Gloria Navarros, Myhres, and many more, who enjoy the power and the opportunity to control others that government employment gives them.

  2. I respectfully disagree.

    “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 First Amendment (nor for that matter the 2nd), does not contain Exception Clauses; it does NOT say, except when you hurt someones feelings (which is one of the most common complaints today), nor is there an exception clause for Racist, Sexist or any other Free Speech. I find Racist Speech personally despicable, but I will defend that persons right to say it.

    If you cause harm by yelling FIRE! in a crowded theater and someone has physical injuries or death, resulting from being stomped or killed, that is a prosecutable action, because someone was harmed.

    Likewise, Supreme Courts role here, needs to be revised. Their “RULINGS” (words have meaning, and they are SUPPOSED to give Opinions) are completely against our founding documents in many, many ways. Many SCOTUS Justices have said in the past, that “Any Law that is Contrary to the Constitution, is to be considered Null and Void”.

    It’s time we return to some sanity in this country. Take responsibility for your own behavior and speech, because I do not voluntarily hang out with racists, and that’s what is supposed to happen.. unpleasant habits/speech means those uncomfortable politely and respectfully back away. And if asked about it? They tell them the truth about why they have distanced. It’s not complicated people, we MAKE it hard.. and in my opinion, that’s by design.

    Thank you for the excellent article, as always.

    • Thank you for your thoughtful reply. Actually, we are on the same page and I agree! Your use of the shouting fire in the theater is a classic one where the right to free speech is limited or abridged by not physically hurting somebody or their property. The point I was making is that these rights are assumed to be exercised by people with morals and common sense. Our founders had a moral compass and they assumed that future Americans would have the same moral compass in which it was not necessary to abridge rights for fear that somebody would scream “fire” in a crowded theater. Likewise, firearms needed no special regulation because it was assumed that people with a moral compass would use them responsibly. In Switzerland, people keep machine guns in their homes, because government trusts them and the Swiss have the common sense not to use them irresponsibliy. Government does not possess that moral compass, and never will. It is better to risk someone shouting fire in a theater than give government, especially federal govt, the power to regulate us.

    • Kathleen Brady,

      If you cause harm by yelling FIRE! in a crowded theater and someone has physical injuries or death, resulting from being stomped or killed, that is a prosecutable action, because someone was harmed.

      I completely except agree except, the first amendment starts out by saying. “Congress shall make no law.”

      What business does Congress have in that circumstance. That is the business of local government. But the yelling “fire” in a crowded theatre is the exact example that federal judges have used to ignore the 1st amendment. The supreme Court has used the same type arguments to restrict religion or the free exercise. This article is solely based around the actions of the federal government and therefore the arguments that this author of this article are incredibly legitimate. Why did you bring up racism? Oh, just some way to distract from the real discussion.

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