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Friday, April 16, 2004

Protests and Golf Tournaments: In a decision of relevance to both sports fans and 1st Amendment scholars, the 11th Circuit has struck down the Augusta, GA anti-protest ordinance. The law, which was passed in advance of Martha Burk's protest of Augusta National's all-male policy, prohibited any group of five or more people from engaging in "[a]ny expression of support for, or protest of, any person, issue, political or other cause or action which is manifested by the physical presence of persons, or the display of signs, posters, banners and the like."

In a 2-1 decision, the court wrote that the statute unfairly targeted "political" speech, regulating it more harshly than other forms of speech. As a result, the ordinance was content-based and subject to a strict scrutiny analysis. Because the regulation was not narrowly tailored to further a compelling government interest, it violated the 1st Amendment and must be struck down.

While I agree with the court's ruling in this case, its reasoning is not sound and evinces the myriad of cases that constitutes 1st Amendment jurisprudence. In two recent decisions, the Supreme Court carved out 1st Amendment exceptions for the regulation of protests and demonstrations. While the 11th Circuit distinguished these cases, its analysis was misguided and incomplete.

In Hill v. Colorado, the Supreme Court upheld an ordinance banning demonstrations outside of health facilities, including abortion clinics. The statute was designed to protect the health of the patients entering and exiting these facilities. As a result, the Court ruled that the law did not limit the content of the speech, but merely "the place where the speech occurs." The 11th Circuit, however, stated that, unlike in Hill, the Augusta ordinance was not narrowly tailored to achieve a specific goal. In contrast, the "place" at issue in the current case was limited differently depending on the type of expressive activity at issue.

However, was the regulation in Hill truly content-neutral? One questions whether enforcement would have been uniform had the gathering of people outside of the abortion clinic been cheering and supporting the patients entering the clinic, rather than booing and protesting their actions. In this sense, enforcement becomes not only content-based, but also viewpoint-based, which receives the harshest form of constitutional scrutiny. Likewise, would the police act as quickly to break up a group of six people celebrating the history of the Masters and Hootie Johnson, as it was to disperse a group of protestors? One thinks not, lending support to the government's argument that Hill could control.

The court likewise missed the mark in its analysis of Frisby v Schultz. In Frisby, Court upheld an ordinance that prohibited "targeted picketing" of a residence. The court in this case wrote:

    The County errs by failing to appreciate the difference between picketing -- which is a method of delivery of speech involving conduct without regard to any particular message or subject matter -- and the County's definition of "Protest/Demonstration," which expressly targets all expression on a certain
    subject matter, political speech. Of course, people engaging in picketing nearly always intend to send a message of some kind along with their acts. However, the acts themselves -- standing, marching, or holding a sign, for example -- do not involve any particular expressive content, and the conduct may therefore be regulated without burdening any particular viewpoint or subject.

This analysis has numerous holes. One, the court overly limits the reach of the Augusta ordinance. It does not, in fact, limit only "political" speech, but also limits shows of protest or support for "any person, issue, political or other cause or action." Looking at the definition in its entirety, it begins to look very similar to a common definition of "picketing." In addition, the court's comment that the acts of picketing -- standing, marching and holding a sign -- "do not involve any particular expressive conduct" and can be regulated is just wrong. The conduct most certainly is expressive, no matter the message behind the actions.

However, while I disagree with the court's rationale, its ruling was most likely correct and could have been supported on other grounds. First, the history of the statute gives strong evidence that it not only is content-based, but also viewpoint-based. The statute was passed only one month prior to the 2003 Masters, after Burk and her supporters made clear their intentions to protest the tournament. In addition, the discrepancy within the same statute for "protests and demonstrations" and other events indicates a 1st amendment problem.

The court correctly points out that while the statute pertaining to protests and demonstrations limits groups to five or less, a group participating in any other form of speech is covered by the "mass gathering" statute, which has a limit of 1000. If the purpose of the statute, as claimed by the government, was to avoid traffic congestion, maintain the peace, it seems to make little sense to limit protests to five people, but not other forms of speech such as "a street party, a tail-gating party, a sidewalk performance by a five-person musical group, or even a high school band."

The court could have distinguished Hill and Frisby, not on the basis of content-neutrality, but rather on the nature of the government interests at stake. In both cases, the government had a compelling interest for limiting the 1st Amendment rights of the speakers -- in Hill, to protect the health of the patients of the clinic, and in Frisby, to protect the sanctity and privacy of the home. Neither of these interests is implicated in the protest of a golf club, and the one proferred interest, maintaining public order, is belied by the statute's own double standard.

In the end, though, the statute served its purpose. Burk was prevented from protesting the tournament in 2003, when the public attention was at its peak. It is almost a year until next year's Masters and so only time will tell if this decision has any impact on next year's tournament, or on the policies at Augusta National.


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