Monday, May 30, 2011

Protest Permits

A protest permit is permission granted by the state for a demonstration to be held in a particular venue at a particular time. Failing to obtain a permit may lead to charges of parading without a permit.

1931 the Supreme Court developed a doctrine (Near vs Minnesota) that says that “there is a heavy presumption against” the Constitutional validity of prior restraint. This means that governments have to prove the validity of prior restraint in each instance; its validity can never be assumed. Several Constitutional scholars have agreed that requiring permit engage in protest is a classic type of prior restraint,  and permit systems assume the validity of prior restraint: instead of governments always having to prove prior restraint is essential, protesters are burdened with proving unconstitutionality.

Then in 1939 the Supreme Court finally declared (Hague vs. Committee For Industrial Organization) that the use of streets and sidewalks for political assembly and speech was constitutionally protected. And when it made this declaration it immediately qualified it. Public speech and assembly, the Court declared, has always to be “exercised in subordination to the general comfort and convenience, and in consonance with peace and good order” since then, the courts have found “general comfort and convenience, peace and good order” to encompass everything from minimizing the opportunity for violence to not disrupting Saturday afternoon shoppers.  Still, courts have strongly encouraged the development of permit processes, regardless of the decision which found the permit a form of “prior restrain” on political speech.

The Court’s contradiction between its promotion of permit systems and its prior restraint doctrine is unnerving to say the least. The 1941 ruling (Cox v. New Hampshire) said that public political speech could not be licensed but parades could.  Then in 1953 The Vinson Court decided that stationary protests could also be regulated, since unlike parades, they tended to “monopolize” space making it unavailable.  In 14 years time the Supreme court ruled on free speech that Americans enjoyed for 163 years without the need of court involvement, then backpedaled so far as to contradict itself and remove the right almost completely, unless they grant you a permission slip. 

The protest permit system now is the primary means of assuring peace and good order, by regulating free speech.

Prior restraint as a form of government censorship would have disgusted the designers of the Bill of Rights.

Did Martin Luther King Jr. Get a permit?

Did Gandhi get a permit?

Here is a short list of 56 early Americans who also chose not to get a permit for their initial protest. 

John Hancock
Josiah Bartlett
William Whipple
Matthew Thornton
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
Stephen Hopkins
William Ellery
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
George Read
Caesar Rodney
Thomas McKean
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton
William Hooper
Joseph Hewes
John Penn
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton
Button Gwinnett
Lyman Hall
George Walton

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1 comment:

  1. As a descendant from the Adams tree I can't understand how your government is going to take you seriously if you have to ask for permission to complain. Here in America the citizen is the sovereign and we have the right to bear arms against our government in order to retain our sovereign rights. In order to protect everyones rights when a plan evinces itself as a design to reduce our citizens to absolute despotism it is not only our right but our duty to throw off such government and establish new government as to best provide for our safety and security and pursuit of happiness that is our GOD GIVEN RIGHT.