Sunday, March 6, 2011

Does Technology Allow Restrictions on Free Speech at Ohio and Wisconsin Capitols?

Recently, a lawsuit was filed by a state representative and some citizens who were denied access to the Ohio statehouse last month.  Similar lawsuits have been filed in Wisconsin.

Courts have, in other circumstances, struck down security zones that push protestors far away from their intended audience.

There is a technology angle on this, as even if the buildings are closed the proceedings are available on television and the Internet.  Viewing is not enough, however.  The question is whether the use of technology allows the same ability to get a message to decision makers. 

In a case involving the 2004 Democratic convention in Boston, for example, a court noted that messages expressed beyond the first-hand sight and sound of the delegates nonetheless are likely to reach the delegates through television, radio, the press, the internet, and other outlets.  

Does the ability to communicate through electronic means eliminate the need for any in-person protests or communications?  Probably not.  The cases involving delegates may not be applicable to legislators because value of getting messages to delegates to a party convention is substantially different than the value of getting messages to legislators.  However, the use of electronic alternatives may get justify further restrictions in the future.   In this situation, closing the statehouse and allowing access through electronic serves as an example of what will likely not be prohibited.  These actions were likely unconstitutional because it foreclosed an entire medium of public expression.   

One final point:  Safety is an important issue, and courts have been deferential to claims by authorities that safety concerns justified restrictions.  However, courts have not accepted without scrutiny claims that safety required a restriction.  This is because safety claims are often a pretext for limiting speech.  As one federal court said, "[C]ourts must . . .  be cognizant of disguised attempts to refuse the fullest scope of free speech allegedly based on governmental concerns such as safety . . .”  And, the Federal Appeals Court in Boston has explained that courts should look especially closely when the restrictions are imposed on views critical of the decision makers:  “Suspicion that viewpoint discrimination is afoot is at its zenith when the speech restricted is speech critical of the government, because there is a strong risk that the government will act to censor ideas that oppose its own.”

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