As the 2012 presidential primary season reaches full speed, let’s pause on the politics for a moment and look ahead to the national Republican and Democratic conventions with the First Amendment in mind.
Republicans will meet the week of Aug. 27 in Tampa, Fla. Democrats huddle the week of Sept. 3 in Charlotte, N.C. Each convention will, without a doubt, attract not only a deluge of delegates but also thousands of protesters aiming to be seen and heard on a variety of issues and viewpoints. For the record, that’s the First Amendment in action, with all five freedoms — religion, speech, press, assembly and petition — likely to be engaged or discussed intensely over both weeks.
Since at least 2000, hundreds of mass arrests have occurred during both parties’ conventions, sweeping up protesters, working journalists and even some bystanders. All too often those arrests ultimately brought no charges. As a result, many claimed that police were acting more to silence critics and preserve decorum than to safeguard citizens.
This time around, let’s include a little First Amendment planning right from the start. As it happens, there are lessons to be learned from lawsuits stemming from the 2008 conventions, some just reaching their conclusion. Then there are the ongoing lessons in dealing with public demonstrations involving the Occupy movement and, earlier, tea party gatherings and marches.
One simple but very important item for early discussion is how to exclude journalists from arrests at unruly demonstrations. News reporters and photographers are the public’s representatives, the means for the rest of us to track how discordant voices are accommodated amid carefully planned convention activities.
The prevailing tactic of “overwhelming force” in some early police actions against Occupy demonstrators in several cities backfired when journalists who were obviously reporting on the events were arrested and their arrests had to be voided. Alternatively, attempts to keep journalists blocks away from demonstrations prevented arrests but stifled news coverage.
Another concern: News reports say Tampa and Charlotte taxpayers will be insulated from having to pay for later lawsuit settlements over improper arrests of demonstrators. It’s a relatively new and insidious practice of providing special legal-liability insurance to convention cities.
While local officials pledge in advance to respect such civil rights, such policies effectively offer a tempting carte blanche to “arrest first, sort later” when it comes to respecting First Amendment rights.
In 2008, during the Republican National Convention in St. Paul, Minn., a reported 600 people were arrested. According to a local magazine, city officials had required party officials to purchase a policy covering up to $10 million in settlement cash. In December, St. Paul and Minneapolis police departments and the U.S. Secret Service settled for $100,000 a lawsuit brought by a TV reporter and two producers who were among about 40 journalists arrested while covering protests outside the convention center.
In Denver, where Democrats met, city leaders also provided “protest insurance.” The Denver Post reported that the primary lawsuit stemming from convention arrests was resolved in October 2011. The settlement provided for about $200,000 in total to be apportioned among eight original plaintiffs, including $20 each to 80-plus others who joined the class-action lawsuit. The settlement also required the police department in future situations to warn protesters that they must leave before arrests began, and to have legal justification for taking demonstrators into custody.
Yes, there likely will be circumstances in which arrests of protesters are warranted. After a chaotic, violent situation, police — and ultimately courts — will have to make decisions on whether someone was caught up improperly in a wave of arrests.
But balancing First Amendment rights with public safety and security concerns through a clear, fair policy determined and publicized well in advance ought to be a primary goal now for convention planners and municipal authorities, not a late-summer afterthought.