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Wednesday, October 02, 2013

Does the First Amendment exception to the government shutdown violate the First Amendment?

10056772194_e2672c3117Well, I was joking. But I guess we should not overestimate the ability of members of Congress to engage in absurd demagoguery, especially when it involves the Greatest Generation. So as the sign at left shows and as a couple of commentators to my earlier post pointed out, national parks are closed, except for "1st Amendment activities." So park police will not be in the awkward position of arresting WW II veterans for trespassing. And Republican congressmen may lose at least one photo opportunity.

The question, of course, is what constitutes "1st Amendment activities," who decides, and how. Is it simply visiting a memorial or monument to see it (which is what the Honor Flights from Mississippi were trying to do)? If so, why should the WW II Memorial be different than any other national park, even one that doesn't have a particular monument, but is a historical, special, or meaningful place to see (which would seem to be, by definition, any place the government saw fit to designate a national park)? This all looks ripe for some pretty blatant content/viewpoint discrimination, wherein "1st Amendment activities" are only those engaged in by people who have congressmen helping them move fences.

If I'm the attorney for the Klan, I'm in district court right now asking for a declaratory judgment that the above sign means they can hold their scheduled rally (which involves actual expression of their own) on Saturday.

Posted by Howard Wasserman on October 2, 2013 at 04:58 PM in First Amendment, Howard Wasserman | Permalink

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The whole spectacle is absurd because the Park Service is spending more money to "close" some high-profile parks than is spent to leave them open, and the WWII memorial is a perfect example.

Posted by: Jonathan H. Adler | Oct 2, 2013 10:03:29 PM

Yes, I think this is exactly right. There is a vagueness problem as well. The very act of posting the sign has an impermissible chilling effect. A law prohibiting "all emotionally hurtful language except for that protected by the First Amendment" would be a slam dunk, and the sign is no different.

Posted by: AndyK | Oct 3, 2013 9:10:30 AM

Who will show up to defend the U.S. when the Klan sues... all the civil AUSA and DOJ attorneys are furloughed?

Posted by: anon | Oct 6, 2013 10:39:46 AM

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