Will the 10th Federal Circuit become the country's main battleground for First Amendment rights? First, Sundance Associates v. Reno, then Free Speech Coalition v. Gonzales, and now ...
Cast your mind back to March of 2005, when President Bush was out on the hustings trying to sell his idea of closing down Social Security and urging everybody to get stock-based private retirement accounts.
One stop on that campaign trail was the Wings Over the Rockies Air and Space Museum in Denver, and as was the rule for such speeches, the audience was screened by Republican Party operatives in an attempt to weed out – that is, refuse admission to – anyone who did not support Bush and/or his policies.
Alex Young, Leslie Weise and one other friend had tickets to the event, but after it was pointed out by a Republican staffer for Colorado Sen. Wayne Allard that the trio had pulled into the parking lot in a car sporting a bumpersticker reading "No Blood For Oil," GOP operatives Michael Casper and Jay Klinkerman, allegedly acting on instructions from the White House, ejected the three from the speech "because they posed a threat of being disruptive," said Sean Gallagher, one of Casper's lawyers.
Young and Weise sued, and the case, having survived the defendants' motion to dismiss at the district court level, is currently before the 10th Circuit Court of Appeals, where Casper and Klinkerman are arguing that, as official government bouncers, they share the sovereign immunity accorded to many other government employees who act within the scope of their official duties.
"The president's right to control his own message includes the right to exclude people expressing discordant viewpoints from the audience," states the brief, filed by Gallagher, Dugan Bliss and others on the defense team, who also asked, "Whose speech is at issue - the president's or the plaintiffs'?"
Never mind that in order to eject the plaintiffs for "expressing discordant viewpoints" during Bush's speech, the bouncers would have had to have been able to read the plaintiffs' minds – it's tantamount to refusing someone admission to a theater because he/she might yell "Fire!" while inside – and never mind that Young and Weise have stated that they had no plans to disrupt the event – although Young did say that, given the chance, he would have asked Bush a question.
Anyone who saw one of these events on TV would have seen such "question-and-answer" periods quickly devolve into mini-cheerleading sessions for Bush's policies along with a smattering of "How can anyone say you aren't right to keep doing what you've been doing?" softball queries. That's what usually happens when audience-sifting via thought-police occurs – and it was well-reported that that's exactly what did happen at every single one of Bush's appearances.
The defendants have argued that the present case is similar to a 1992 Ohio case, where a woman was ejected from a Republican Party rally for wearing a pro-Clinton button – but unlike that rally, the Denver gathering was not supposed to be a partisan event, and took place in a building commonly open to the public.
"A private organization is entitled to limit the kinds of speech that the public can have if it comes to attend its event, said plaintiffs' attorney Martha Tierney. "But the government is under a different standard and can't limit speech just based on viewpoint at a public, taxpayer-funded event."
Perhaps more to the point, though, Weise noted, "My read of the Constitution does not give the president free speech rights greater than the citizens he serves."
But the idea that the President and his supporters can squelch any speech which expresses viewpoints with which they don't agree is one with which the adult industry is all too familiar ... and the most blatant example of it lay in the firings of U.S. attorneys Daniel Bogden and Paul Charlton for failing to bring enough obscenity prosecutions to suit the administration.
Beyond that, the ejection of Young and Weise appears to violate one of the least-quoted clauses of the First Amendment: The one that reads, "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
If citizens can't question a president about his policies in a forum where he's supposedly soliciting public input, what possible meaning can those phrases in the First Amendment have?
But of course, we all know that President Bush looks upon the Constitution as "just a piece of paper."