Free assembly at the Cleveland RNC

Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.

Part of Tabatha's argument is the following:

While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.

I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.

[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.