David Adler: Winmill gives powerful defense of First Amendment

November 7, 2013 

The framers of the First Amendment, many of whom rank among history’s greatest dissenters and protestors, understood the necessity of protecting — and encouraging — speech critical of the government.

As the U.S. Supreme Court has said, on numerous occasions, the First Amendment was “not designed to protect the voice of government or government-approved speech.” Rather, it was written to protect “the voice of the people, even against government.”

The undeniable value to our nation of protection for freedom of speech, peaceable assembly and association is as old as the republic. From Thomas Paine and Thomas Jefferson to Thurgood Marshall and Martin Luther King, Americans seeking freedom and justice have banded together, raising their voices in common cause and common purpose to bring remedies to the defects of government.

Across time, the paths of protestors have been littered with road blocks constructed by government officials little interested in dissident speech. More than occasionally, federal courts have intervened to secure protection for the speech of governmental critics, furthering the goal of the First Amendment to ensure candid debate in America.

U.S. District Court Judge B. Lynn Winmill’s recent ruling in the Occupy Boise case, a stirring defense of the core values of the First Amendment, paints a detailed portrait of the harms inflicted on the citizenry when administrators draft rules and regulations that would erect protections for speech and organizations favored by powerful officials, at the expense of ideas and causes brought by those who would challenge government.

In his 39-page opinion, Judge Winmill held that a seven-day limit on rallies and protests on the Capitol Mall and the authority of state officials to waive restrictions for some groups but not others, violates First Amendment protections.

Particularly objectionable to Judge Winmill is the authority of the director of the Department of Administration to waive regulations for “state events,” which might lead to discrimination against speakers and messages opposed by state officials.

So-called state events include “functions initiated and controlled” by elected officials and state agencies, boards, offices and commissions. The “sole discretion” of the director to decide whether to sponsor an event allows, even invites, arbitrary application of the rules and is “tantamount,” Judge Winmill wrote, “to giving priority to the official voice of the State — a position which is patently inconsistent with the Constitution.”

The improper elevation of state-sponsored speech over other forms of political speech violates the First Amendment’s requirement that government regulation of speech must be “content neutral.” As Judge Winmill observed, “nothing limits the State in choosing to sponsor an event.”

As a consequence, the director may “waive the rules for virtually any activity the State chooses to sponsor.” That means, of course, that the director may waive the rules for those groups that are politically-connected, but “an unpopular or unconnected group would have to adhere to all the rules.” Idaho legislators must move quickly to cure the defects in the governing authority of the director.

Citizens who are committed to freedom of speech will welcome Winmill’s ruling. Advocates of free speech don’t need to endorse the views of Occupy Boise, but they surely must endorse the right of its members to express their views on the Capitol Mall, within the limits of the court’s ruling.

Those who would dispatch the Occupy movement to remote corners of the world should remember that protests on Capitol grounds, at the seat of government, where laws and policies are enacted, are the ideal location to exercise freedom of speech.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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