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SAINT LOUIS-The Occupy protests present a classic First Amendment problem: balancing political dissent against government control of property.
â€œIn theory, the government has very limited authority to curb expressive activity in what the law calls â€˜public forums,â€™â€ says Gregory P. Magarian, JD, constitutional law expert and professor at Washington University in St. Louis School of Law.
Public forums are government-owned spaces, such as parks and sidewalks, that accommodate general public uses, rather than being dedicated to specific government functions.
Magarian notes that the government retains the power to limit the “time, place, or manner” of expressive activity in public forums.
“This power supposedly enables the government to preserve the public’s interest in using public spaces,” he says.
“In practice, however, the government’s ‘time, place or manner’ authority swallows First Amendment rights whole.
“The Supreme Court has held that vaguely framed concerns about safety, access to public space, and even aesthetics can justify the government in shutting down or drastically limiting political protests in public forums. As a practical matter, when free speech in public forums inconveniences the government, the government almost always gets its way.”
Magarian says that in a democratic political culture, no aspect of expressive freedom is more important than the people’s ability to protest the established political order.
“In our legal system, where decisions like Citizens United protect moneyed interests’ dominance of political debate, keeping public resources available for poorly funded dissenters is especially crucial,” he says.
“Yet, as municipal governments start to experience “Occupy fatigue,” most of their efforts to evict or restrict the protesters probably will succeed.
“The Occupy protests should lead us to take a hard look at how our legal system protects – or fails to protect – meaningful opportunities for political dissent,” Magarian says.
“Only specific, well-documented government concerns about public safety or public order should justify government restrictions on the protests,” he says.
“In this respect, the political substance of the Occupy movement makes no difference. First Amendment law should enable political dissenters left, right, and center to present their ideas to the public.”