Viewpoint Discrimination and Bush Protesters

[Scarberry, Mark]

Our moderator posted this analysis on his blog (volokh.com) with respect to allegations that the Secret Service was making anti-Bush demonstrators stay much farther from Presidential appearances than pro-Bush demonstrators:   Viewpoint discrimination and rallies: A few readers have argued that it's fine to separate pro-Bush rallies and anti-Bush rallies just so that each group should be able to get its own message out. (My original post on the subject is here.) Within limits, that's fine; you can certainly say that this park is open to this group, and other groups have to demonstrate across the street.      But, first, this doesn't quite justify putting the other rally a quarter mile or more away (which allegedly happened in some of the incidents). And, second, this doesn't justify giving preferential position to the pro-Bush rally; if the concern is simply keeping two rallies separate, why not let the anti-Bush demonstrators on the public sidewalk nearest the Bush event, and put the pro-Bush demonstrators further away?      Again, the ACLU's factual allegations may be incorrect, or they may be incomplete -- but if they're right, then there does seem to be unconstitutional viewpoint discrimination involved   [end of volokh.com excerpt]   There may be applicable cases of which I'm unaware on rights of demonstrators. It's not my area of expertise, and I'd be very happy to get relevant citations. With that disclaimer, here are my thoughts (mostly consisting of questions).   A lot of parks are more than a quarter of a mile across. Suppose the President's staff announced that he would be speaking in a particular city but did not specify a location-perhaps for security reasons. The city then set up different places (parks across a street from each other) for pro- and anti-Bush demonstrations. President Bush then appeared at or near the location selected for the pro-Bush demonstrators, and as far away as possible from the location of the anti-Bush demonstrators. That could easily be more than a quarter of a mile away. Does anyone want to argue that in so doing the President would have violated the First Amendment? Or that the city would then have to change the permitted locations or allow anti-Bush protesters onto the pro-Bush site? Is the question whether the anti-Bush demonstrators are entitled to use the publicity attracted by the President's appearance to advance their message? Or maybe we could ask whether it is permissible for the President to appear at what is essentially a closed meeting in what would otherwise be a public forum (a park or town square)? I'd assume that when he appears at the Republican convention next year, anti-Bush protesters may legitimately be excluded from the building - but can a park be closed to those who quietly and nondisruptively show disagreement with a group that is holding an event at the park?   Does it matter then that it is the Secret Service (rather than a city) that allegedly is setting up the demonstration locations, based on advance knowledge of the place where the President will be appearing? What if, instead of the Secret Service doing so, the President's political operatives did it? Perhaps the question is whether the President is entitled to choose to appear with those who support him. That takes me to a more general set of questions:   I reserve a small local park (or a part of it) for my daughter's birthday party (under a first come first served signup policy). Does the First Amendment prohibit the city from allowing me to exclude persons from the park (or from the reserved part of it) who want to picket (carrying signs saying "Down with law professors and their children!")? Now, instead of a birthday party, suppose it is a political rally. May I exclude those who would carry signs opposing my political group? Does the answer change if I invite a public official belonging to my party (such as the President) to speak at the rally?   My tentative view is that a political rally is a little like the parade in Hurley; if my group obtains the right to use the venue (under content and viewpoint neutral time place and manner regulations), then we can exclude persons who wish to put forward a contrary message. If that is right, then are Presidential appearances different, as a constitutional matter, from political rallies? My intuition is that they should be treated differently, and that citizens should have the right to attend and to protest (quietly and nondisruptively), assuming the event is not held out as being a political rally. The President represents the government - in a sense he is the executive branch of the government - and perhaps the right to assemble and petition for redress of grievances gives protesters the right to attend the event, if the event is otherwise open to the public and if the President is speaking as President, not as party leader.   Is my intuition sound here? If not, is that because there is a practical or doctrinal reason that we can't distinguish between political rallies and official Presidential appearances?   Mark S. Scarberry Pepperdine University School of Law