Mayor Reed – Do you understand unreasonable prior restraint?

The U.S. Constitutuion

No, this won’t be a scholarly dissection of Constitutional Law. The question, Mayor Reed, I am leaving in your capable hands, as my professor of Constitutional Law did with me a few (ahem) years ago.

Professor Rogers, who was engaging with me in what seemed like a very long set of questions and answers, said something that made me feel like crap. Not because he was inappropriate; he was decidedly not. But because he was right.

I don’t recall the questions. I only recall that I got to a place in the inquiry where, rather than considering and giving an answer, any answer, that reflected my analysis and risk being wrong, I took the short route to hot-seat freedom. My response to his thoughtful question was an unthoughtful, “I don’t know.” And my momentary bliss at getting to the end of my personal Socratic hell was blasted to dust when Professor Rogers responded, “I think you do.”

So, to you, Mayor Kasim Reed, I ask the question, have you read the brief in Turturice et al. v. City of Cleveland. It’s not long, but it’s lovely; don’t leave all the fun for your lawyers.

Once you have read it, please distinguish for yourself:

  • that a regulation of a right that is otherwise protected by the U.S. Constitution must, in each instance of enforcement, be evaluated to determine whether it represents an overbroad and unreasonable prior restraint

It is not enough that whoever wrote the regulations that you think you were enforcing may have considered certain public interests at the time that it was written. Let me say that again. Especially because it is a right protected by the United States Constitution, it is not enough that a city consider this question once, at the time of adoption. It must be considered each and every time that the City exercises its inherent enforcement discretion by electing to limit, evict and/or arrest its citizens.

So it now falls to you. What do you think about the decision to evict Occupy Atlanta from Troy Davis Park on October 25, 2011? What public interest was served by evicting and arresting those who were occupying the park? Sanitation? Weren’t the citizens actually cleaning the park daily? Crime? Security? Weren’t the occupying citizens actually ensuring the safety of the occupiers and other citizens? Weren’t the public coffers potentially relieved of regular costs, rather than increasing the need for monies?

  • I believe that the local press has attributed a statement to you that the occupiers were costing the city. It just makes me wonder, in this sidebar, who authorized the “necessary” pressure washing of the park sidewalks on what I recall was Saturday, October 15? You might consider training your staff on unnecessary, even extravagant, use of public monies if it was not your personal decision. And by the way, what public interest is there in flying police helicopters over lawful, pre-curfew assemblage of citizens, sitting cross-legged in a circle on the ground, discussing aspects of their preparation to petition the government?

You have the opportunity to reconcile the U.S. Constitution with your local ordinances, instead of allowing the ordinances to appear to be equal and even superior to the U.S. Constitution. You must answer the question, “Did I do that? Did I reconcile a local ordinance on public spaces with the right of the people peaceably to assemble espoused in the First Amendment to the U.S. Constitution?”

Please do yourself a favor and don’t stop at, “I don’t know” lest Professor Rogers be in the room.

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10 responses to “Mayor Reed – Do you understand unreasonable prior restraint?

  1. dictate in the democratic world!?

  2. I don’t think Reed is a dictator. He is a mayor getting some bad advice about prior restraint and the U.S. Constitution, as are many mayors in our fine country.

  3. good argument.
    would like to see a better explanation of the term “prior restraint” — what is your layperson’s translation?

    i support Occupy and i agree with you.
    unfortunately it seems that sometimes local governance tends to overreach because of (a) its primacy and immediacy; and (b) the misunderstandings associated with hierarchial levels of government and their powers. not sure if i phrased that very well, i guess i’ll know by any followup questions…

  4. I didn’t mean to ignore your other question (just getting ready for work), but to the hierarchical levels of government as some explanation for overreaching . . .I am not certain that any explanation of why the government overreaches, or effects a prior restraint on the rights of the citizens under the Constitution, is relevant. It may help one understand them as citizens, but it does not “justify” any abrogation of First Amendment rights.

  5. i asked because “prior restraint” is not in common usage outside of legal circles, afaik, and a understanding of it helps in reading your argument. best i can tell from other sources is something like “Restriction of free speech” or, more simply, “censorship.”

  6. Yes, I think that at least the “restriction” is a fair way to look at it. Not so much censorship, I don’t think, because censorship seems to imply that it has something to do with the content, that the government is shushing you because it doesn’t like the particular message.

    While that may be true in this case, I think the argument is, rather, that it is merely the right of the act of speech and assembly that they are squelching through their actions, their regulations, their selective enforcement, or even statements about how these “speakers” or “assemblers” are costing the taxpayers money, or helicopters flying overhead. Because even the threat of enforcement can prevent the exercise of a Constitutional right.

    And to the last point, Mayor Reed certainly wins no points by claiming that the Occupy citizens are costing money, when it is his attempt to utilize prior restraint (evicting from the park to “clean” it, or flying helicopters over, and over, and over) that is incurring the cost. He loses on that one, in my mind.

  7. i agree to use force to”clean” rubbish from streets but high using of it till confrontation with protesters ,i think they’r so smart to act by themself to do the right thing,is not very reluctant…what i want now : all this mess must end the lone way by stopping this “war”between rulers & their opposants for presidency and trying to resolve all kind of problems .not only USA but all our world ‘ll collapse in a deep crise if selfish wins….and our dialogue on whether prior restraint is legal or not in a democratic country will be useless

  8. None of it is useless. The dialogue about our reclaiming our rights will be an exciting one that will mature over time.

  9. i’m O.K but other things ‘r more important than prior restraint!…in other hand why ,in this crisis climate ,OBAMA does’nt use this principle to impose his view to republicans in many field such as creating jobs,taxing greedy speculators and banks…in french law it calls “interet publique”=public interest” mean when administration judges that some decisions must be taken inspite of its illegality but they “decisions” ‘r benefic to the country and people

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