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March 18, 2005

constitutional rights: one

Don Herzog, Herzog: Constitutional Rights: March 18, 2005

Ah, the logistical nightmares of blogging.  I faxed a request over to Central Casting for a scruffy radical.  I needed him to help me dramatize some unhappily abstract but crucial points about constitutional rights.

I figured they'd send a Marxist, maybe with Gulag experience or some expertise with Semtex, surely needing a shave.  Imagine my baffled consternation when a tofu-eating, Birkenstock-wearing guy in tattered blue jeans and a tie-dyed t-shirt showed up.  "Hey!" he said jovially.  Hey, I responded rather more lackadaisically.  "Oh, I know," he said.  "Sorry, Marxists are in short supply these days.  They all get enlisted to masquerade as liberals on right-wing blogs.  It's hilarious, the nearsighted readers always fall for the pathetic disguise.  But I'm for real.  I'm a libertarian.  Yeah, sure, free markets are great.  Whatever.  But mostly I'm into legalizing drugs."  He flashed his NORML button and hinted that he didn't draw the line at soft drugs.

I brightened:  we were in business.  Readers, say hello to Lib.  Lib, say hi to our friendly readers.  Now, everyone, we're going to troop off to the public park and watch Lib scream about legalizing heroin.  There some state official is going to try to shut him up.  And your diligently pedantic blogger will stand by and explain to you what the law makes of the drama.

Skit the first:

Lib:  You ought to be able to buy heroin at the corner store!  Your kid, too!  The state tramples on your chemical liberties!
Cop:  Hey buddy, you can't say that here.  I don't like it.  Clear out.

The cop has just violated the first amendment.  The state may not shut Lib up because it disapproves of what he has to say.  He has not come close to what would count as criminal solicitation or advocacy; he is merely preaching an abstract doctrine.

Skit the second, in which Lib, who really can spout more diverse and entertaining slogans when he needs to, sticks to the tried and true:

Cop:  Hey buddy, you can't say that here.  I don't care myself, but [pointing to horrified social conservative parents and their kiddies by the play structure] those nice folks over there don't like it.

Our intrepid cop has once again violated the first amendment.  The state also may not shut Lib up because others disapprove of what he has to say.  The law calls this a heckler's veto and rejects it.  That's interesting, given our general commitments to having the state respond to what most of its citizens want.  But it's well (and properly) entrenched in the law.  Nothing will change, either, if the families take off in a huff.  That is the state can't justify shutting Lib up by saying he's making the park unusable — at least not if the reason they leave is that they dislike what he has to say.

Skit the third, Lib as before, but with megaphone:

Cop:  Hey buddy, clear out — you're too loud.  Township ordinance says no noises over 68 decibels in the park.  I don't care if it's you yammering about heroin or a boom-box playing music or a jackhammer.  Not in the park.

There could be a first amendment problem here.  If the state rammed through the ordinance in order to shut Lib up, they can't do it.  The law will be interested in sniffing out the possibility that the ordinance is a pretext masking that illegitimate motive.  But given how sensible the ordinance is, it will be hard to show that.  Similarly, there could be a problem if the state selectively enforced the no-noise ordinance:

Lib:  Judge, it isn't fair.  Every Thursday there's a rock concert in the park.  There's a guy who likes to do his metal working outside, and believe me some of that equipment is incredibly loud.  They don't get evicted; I do.  Come on!

In principle, Lib's appeal should win — if he could show that the reason he's treated differently is what he's saying.  But it is very hard to prevail on a showing of selective enforcement, because courts credit the other branches of government with acting in good faith, and accident or sensible discretion, not only opposition to his views, could explain the outcome Lib complains about.  In the usual case, though, the noise ordinance presents no first amendment problems at all.  In a clumsy category I could live without, the law blesses the ordinance as "content-neutral," which just means it isn't worried that the ordinance is "frankly aimed at the suppression of dangerous ideas," as the Court put it in 1950.

Skit the fourth, Lib developing repetition compulsion but still delivering his ardent plea for vending-machine heroin with gusto:

Cop:  Lib, moms, dads, kids, everyone:  out of the park!  Time for the monthly insecticide spraying.

No constitutional problem, unless the park department brought out the spray equipment to make Lib clear out, and the cop cleared everyone else out just to cover up the park department's pretext.  But if it's a regularly scheduled spraying, say, the law effortlessly approves it.  Sometimes the law in these settings worries about whether Lib has a reasonable alternative for getting out his message, but let that complication go.

Notice that Lib is silenced just as effectively in the third and fourth dialogues as he is in the first and second.  So — this is crucial — the first amendment isn't implicated by silencing as such.  Everything here depends on why the speaker is silenced.

Ladies and gentleman, a round of applause for my obliging assistant, Lib.  Lib, don't blush, it's okay.  Now let's join Lib as
yikes!  Nothing politically interesting has happened yet.  This is all preface.  And damned Lib has wandered off to get high — what does my contract with Central Casting provide?  Anyway, he's in no shape for any further dialogues.  When he's lucid again, I'll march him back onstage to do some more work.  Keep your fingers crossed that he doesn't get busted, will you?


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Posted by: Literally Retarded

OK, I read the whole thing. Is this just a lecture, or do you have a point to make?

Posted by: Literally Retarded | Mar 18, 2005 6:41:23 AM

Posted by: Perseus

Don Herzog: As someone who lives in LA LA land, I'm sure my pals at CAA (Creative Artists Agency for those of you unfamiliar with showbiz) could book one of these scruffy radicals for your new drama: Professor Susan Rosenberg (who, as a former member of the Weather Underground, knows a thing or two about bomb-making), that currently hot commodity, Professor Ward Churchill, or if you're on a tight budget, our own local radical, Professor Kerri Dunn (who is currently in jail after faking her own hate crime, but like most actors here, is eligible for a work release program).

Posted by: Perseus | Mar 18, 2005 6:59:15 AM

Posted by: Shag from Brookline

Expect conservatives to come up with this bumper sticker:


Posted by: Shag from Brookline | Mar 18, 2005 7:18:26 AM

Posted by: D.A. Ridgely

And if your, ahem, libertarian loudmouth tried the same thing at Los Angeles Intl. Airport and was rousted by Transportation Security Agency personnel, Variety could cover the story with the following headline:


Posted by: D.A. Ridgely | Mar 18, 2005 7:55:21 AM

Posted by: S. Weasel

Um hum. The Central Casting that sent a libertarian to play "Lib" must be the same Central Casting who sent Family Matters an accordian-playing black kid to play the quintessential computer nerd. Wishful Thinking Associates.

Posted by: S. Weasel | Mar 18, 2005 8:03:18 AM

Posted by: Tom Perkins

Don't dis Urkel. That sh!t ain'cool. TDP, ml,msl,&pfpp

Posted by: Tom Perkins | Mar 18, 2005 8:28:50 AM

Posted by: john t

Perhaps if Lib had offered the cop a doobie he wouldn't have been hasseled,maybe the kids in the park were playing because they were stoned,and maybe the parents were in the bushes wife swapping. Now that's a scenario.

Posted by: john t | Mar 18, 2005 9:33:31 AM

Posted by: john t

once again D A Ridgely stuns us with his intellectual virtuosity. In one master stroke he manages to combine the imagery of a Shelley with the realism of a Milosz topped of by the anti-grammer of an e e cummings. D A it must be getting ever so difficult to maintain even the appearance of modesty! What other unmatched talents are you keeping from us?

Posted by: john t | Mar 18, 2005 9:54:20 AM

Posted by: Tad Brennan

Well, DH's post certainly has me waiting for the other shoe to drop.

Posted by: Tad Brennan | Mar 18, 2005 10:13:32 AM

Posted by: stick

Donny Herzog: Vending-machine heroin is great, but more verisimilitude, seel vous play--

In LA or SF the Cop shakes down Lib, seizes his dope, takes him downtown; Lib after being beaten up at jail, gets 5-6 years in CDC for a few grams, where he picks up hep C or AIDS; meanwhile, Cop, having skimmed a little off the top, divies up the heroin with his pimps & hos on the street and turns a little profit; any decent meth Lib had is shared among the deputies.

Posted by: stick | Mar 18, 2005 10:23:59 AM

Posted by: Terrier

I think the better question is whether Lib has a predilection for guns like those other Libertarians, Hunter S. Thompson and Ward Churchill. If so, he probably gets arrested for shooting the park street lights out.

Posted by: Terrier | Mar 18, 2005 10:54:26 AM

Posted by: stick

Yes, libertarian issues are quite interesting and Profesor Herzog has again done an admirable job in presenting the issue in an effective mmaner.

Tet, we might ask what about the legitimacy of the cop himself, his power, his job, his authority--who decided that he was fit to be a policeman? Is the police department itself more effective at stopping crime than say a citizen's constabulatory or ramped-up neighborhood watch program would be? Perhaps the people near the park where Lib is representin' want heroin in their vending machines.

It's debatable whether individuals should be able to forge careers which consist of driving around in state-funded race cars, wearing militaristic uniforms, armed and dangerous, making a few small busts here and there, and earning a larger salary than teachers and many enginners for having no education and no special skills.

Though his exit was a bit psychotic, Hunter had every right to keep his guns in police state USA.

Posted by: stick | Mar 18, 2005 11:11:24 AM

Posted by: Jay Cline

I love the parodies and metaphors.


Posted by: Jay Cline | Mar 19, 2005 5:04:11 PM

Posted by: Untenured Originalist

In other words, how the Speech Clause mutated into a parody of the Equal Protection Clause under the influence of loopy "public forum" analysis. As Seinfeld would say, "not that there's anything wrong with that."

Posted by: Untenured Originalist | Mar 20, 2005 2:29:11 PM

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