When protesters try to make themselves heard at this summer’s presidential conventions they’ll likely be penned by police some distance from the candidates. Law professor Ronald Krotoszynski argues in a new book that that’s a violation of the 1st Amendment, specifically the right to petition the government for a redress of grievances. He explains to Bob why protest is a form of protected speech and why proximity to the government officials you’re protesting is paramount.
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BOB GARFIELD: When the political conventions are held this summer, some of those convening will not be candidates or delegates or media. They will be protesters availing themselves of their First Amendment right to speak their mind. But if the past is any guide, they will be speaking largely amongst themselves in penned off areas remote from any actual elected officials. Court decisions have upheld the sanctity to say what you wish but not necessarily where you wish to say it.
But Ronald Krotoszynski, a law professor at the University of Alabama, thinks that denying protesters proximity to the powerful is unconstitutional. The right to petition the government is protected speech, he says, that depends on physical access. Ron, welcome to the show.
RONALD KROTOSZYNSKI: Good to be with you.
BOB GARFIELD: Now, I’m confused about this. Does petitioning the government, as you suggest, really take the form of street protests at a nominating convention or anywhere else?
RONALD KROTOSZYNSKI: The original draft of the First Amendment that Madison presented to the House of Representatives linked assembly with speech, and there’s a good reason for this. Meetings, other than those called by the Crown or by the gentry were illegal in 17th-18th century Britain. And so, in order to petition, you have to gather signatures, you have to canvass support. But you can’t do that very easily if you can’t assemble. One is not really possible without the other.
BOB GARFIELD: Can you give me a concrete example of a - an important protest that was really fundamentally not speech but a petition to government?
RONALD KROTOSZYNSKI: I think perhaps the Selma to Montgomery march of March 1965. The original plan submitted to a federal district court in Montgomery, requiring Alabama to permit the march and to provide security for the march and the marchers, included, at the end of a rally in downtown Montgomery, the presentation of a petition to Governor Wallace. And that petition was taken from Selma to the Capitol. A group of 20 knocked on the door. They were admitted and Governor Wallace received the delegation, received the petition, and spoke with them for 90 minutes. Would the Selma march have had the same effect if Governor Wallace in Alabama could have said “Well, protesting in our State Capitol is dangerous. The governor is there, the Supreme Court is nearby. We’ll let you use the state fairgrounds six miles away. Now, enjoy yourselves.”
There’s something about ordinary people, citizens who can’t write $2500 campaign checks to, to go to fundraisers, to put ideas and concerns on the national agenda, through the mediation of journalists and national media who cover these confrontations.
BOB GARFIELD: Now, as a practical matter, what we’re discussing here is the right to gather and protest at a major political event, where security is an issue. And ‘til now political organizations like the Democratic Party and the RNC, with the full [LAUGHS] cooperation of municipalities, have seen fit to pen protesters, and sometimes media themselves, under the pretext of security, and the courts have pretty much said okay to all of this. Are you suggesting that if you consider the right to petition the government that it will change the court’s calculus about how well the police can segregate protesters?
RONALD KROTOSZYNSKI: That’s exactly my claim and my argument. I was talking to a friend recently in New Orleans and telling him about the book, and he said, “But I don’t have to listen to Occupy protesters or Tea Partiers.” And I said, “Well yes, that’s exactly true, but you're not the government.”
When it comes to the government, the petition clause suggests, and historical precedents support, guarantees the right to access and to engage the government. And the government, unlike a private person, has a duty to listen. And the courts have said that generally you have a right to use government property to engage in speech activity, but the courts have also said that you don’t have a right to access a particular audience under the Speech and Assembly Rights.
My claim, and my argument is that the rights of petition ought to secure a right of access to the government and its officials, even when that access doesn’t involved an email or a letter but a t-shirt or a placard.
BOB GARFIELD: The question of segregating protesters and the press from politicians is perhaps the only bipartisan effort going on in Washington. [LAUGHS]
RONALD KROTOSZYNSKI: Indeed. [LAUGHS]
BOB GARFIELD: Both parties seem to agree that it’s best to stay away from the ruffians.
RONALD KROTOSZYNSKI: I certainly don’t mean to suggest and don’t suggest that security concerns are not valid and important. Gabriel Giffords provides a tragic example of the dangers that politicians face when they interact in public with their constituents in unsecure environments.
But surely, whatever bona fide security interest exists isn’t a function of whether my t-shirt has an I heart Obama or a, you know, red slash mark anti-Obama t-shirt. And you said, you know, mentioned, well, they don’t like ruffians. Well, that’s true. They don’t want to be contradicted they don’t want the message of the day disrupted.
You know, LBJ, towards the end of his presidency, would only give speeches on military bases because if he went in public Walter Cronkite would lead with the antiwar demonstrators confronting President Johnson, rather than President Johnson’s Great Society proposal. That’s an example of how this kind of hybrid speech can have a powerful effect and, and actually help set our, our political agenda. That’s what petitioning is about.
BOB GARFIELD: Okay, let’s just say you're right. What do you have to do between now and the [LAUGHS] political conventions to bring about the change you're seeking?
RONALD KROTOSZYNSKI: The ideal from my perspective would be if practicing lawyers representing these groups that seek to protest proximate to these venues to reach that audience would include the petition clause in their complaint. If they do that, then the government is going to have to respond and district judges will have to decide whether these are, in fact, separate rights with independent meaning or, or whether they are, in fact, cut from the same cloth and essentially indistinguishable.
BOB GARFIELD: Professor Krotoszynski, thank you very much.
RONALD KROTOSZYNSKI: Thank you.
BOB GARFIELD: Ronald J. Krotoszynski is a professor of law at the University of Alabama and author of “Reclaiming the Petition Clause, Seditious Libel, ‘Offensive’ Protest, and the Right to Petition the Government for Redress of Grievances.”