The First Amendment Protects Everyone
This article first appeared in the Summer 2002 edition of Liberties, the newsletter of the ACLU/EM
The First Amendment Protects Everyone
By Denise Lieberman
ACLU/EM Legal Director
Summer brings the familiar street fairs, festivals and conventions ñ and with these, an increase in the number of First Amendment complaints from those who wish to petition, march, protest or leaflet. These rights are all the more poignant in this first summer since September 11, as repressive government actions nationwide this year have left civil libertarians on guard for measures that crack down on the freedom of citizens to petition government, protest, or seek information. Even the title of the wide-sweeping USA PATRIOT ACT suggests that dissent is unpatriotic and that our new era is intolerant of questioning. Such is true in several new cases our affiliate has taken this summer. While not directly related to post-September 11 activities, these constraints on petitioning, protesting and information-gathering are similarly disturbing.
In addition to assisting protestors and petitioners at the Baptist Convention and at Fair St. Louis this summer, we are litigating several cases that address where the boundary lines exist in citizensí rights to petition government.
For example, should a citizen be allowed to petition on a sidewalk in front of a government agency? By and large, the answer is yes, but the right to petition in public spaces has quietly been whittled away by courts in recent years. Post office sidewalks are favorite places for signature gatherers. The U.S. Supreme Court upheld a law limiting solicitation at post offices in 1991. But then Congress passed wide-sweeping legislation barring all petitioning activity at post offices, including the peaceful collection of signatures for citizen ballot initiatives. Thatís what got petitioner Jean Stussie arrested at the post office in Ballwin, MO. The ACLU national office is challenging these broad restrictions, arguing that they improperly infringe on citizensí First Amendment rights. Our challenge to Stussieís charges does the same.
What happens when a government agency is located in a privately-owned strip mall? Is the space ìpublicî in the sense that constitutional rights apply? This is the novel question raised in our challenge to Stussieís arrest for signature gathering outside a Florissant Department of Motor Vehicles office. The question: Is the sidewalk in front of the government agency public, therefore conferring First Amendment rights ñ or is it private because the government rents the space from a private owner? Citizens enjoy no first amendment rights in private places, but government must accommodate free speech (though it may impose reasonable time, place and manner restrictions). Is the government exempt from its constitutional obligations simply by locating in a space that is privately owned? The strip-malling of America has created this new legal conundrum ñ government agencies used to be found in free-standing, government owned buildings ñ now, the post office, DMV and even police sub-stations, sit next to your favorite retailer in the mall. The courts have yet to decide where the public/private boundary lies.
But for Stussie, this boundary is critical. If not allowed to collect signatures at post offices or government offices in strip malls, she says it will be impossible, given the deadlines and number of signatures needed, for citizens to get their issues on the ballot. Without the ballot initiative process, she says, an important avenue for citizen voices will be silenced. Ballot initiatives, which can place issues on the ballot if a requisite percentage of registered voters sign a petition, is one of the only fully citizen driven ways to participate in government, says Stussie. And it is the only way for citizens alone to get a matter before voters. ìThis is about protecting the democratic process,î she says.
But can the democratic process go too far? Thatís the question in a libel and defamation case brought by a local mayor against six Creve Coeur citizens who voiced opposition to the process of committee appointments. The case represents a disturbing nationwide trend in suits by government officials against citizens who speak out. Disguised as common tort claims, these kinds of suits, known as SLAPP suits (strategic lawsuits against public participation) are intended to quiet petition activity and dissenting views. While the First Amendment does not protect libel or defamation, SLAPP suits are typically filed against citizens who engage in protected speech and petitioning activities. The suits chill free speech activity by tying up dissenters in costly litigation and making other citizens afraid to speak out for fear of being sued.
The Creve Coeur citizens were sued after they publicly raised questions about a potential conflict of interest in a committee appointment. The suit claims that the citizens libeled the mayor and a councilperson. The citizens claim that they used legitimate political channels, such as speaking at council meetings and writing letters, to request an investigation. The ACLU filed an amicus brief in this case. Taking no position on the merits of the citizensí opinions about the appointment process, the brief argues that the citizens should have a right to air their grievances. ìThere is simply nothing more fundamental in our democratic process than the right to petition oneís government,î said ACLU/EM Executive Director Matt LeMeiux. These kinds of suits punish dissenters and make citizens afraid to speak out in their communities, he said.
ìYou canít imagine how alone this has made us feel in our own community,î said Laura Bryant, one of the defendants. ìNow citizens are afraid to speak out. No one is willing to stand up; no one is willing to file complaints. It destroys the validity of the ethics process.î
How can citizens voice opposition to government actions if the government can keep their activity hidden from the public? Thatís the issue in our open-records challenge against the state Department of Corrections, which refuses to disclose information on how inmates in Missouri are executed. Attorney Cheryl Rafert, an anti-death penalty activist, requested information from the state including what chemicals are used to execute prisoners, whether doctors are on hand should something go awry, the qualifications of the executioners, how witnesses to the execution are selected, etc. The state, which acknowledged that its documents containing protocols for executions are 76 pages long, sent Rafert 13 pages, mostly introductory material. They redacted the rest. None of Rafertís questions were answered.
The state said that the information is ìsecurity-sensitive, ì and therefore exempt from the open records laws. Thatís the same reason the federal government gave when it refused to disclose the names or charges of the thousands of people it detained after September 11. Recently, a federal judge in New Jersey said that the government must disclose this kind of information. In that case, released on Aug. 2, the court confirmed that arresting and jailing people in secret is contrary to fundamental American values. The court said that the in enacting the Freedom of Information Act, ìCongress recognized that access to government records is critical to earning and keeping citizensí faith in their public institutions and ensuring that those institutions operate within the bounds of the law.î Thatís exactly what Rafert sought to do in looking at the execution protocols of our state, ranked third highest nationwide in number of executions per year.
Our government derives legitimacy from the fact that its processes are largely open to the public. Once a veil of secrecy is in place, it becomes increasingly difficult for citizens to exercise any other constitutional rights, including the rights to petition and speak out. The true indicia of a free society is the extent to which it allows for petitioning, dissent and openness of the government process. The First Amendment must protect everyone.