The Right to Remain in Public Space

Implicit in the City of Grants Pass v Oregon is the decision that there is no right to remain in public space, at least as far as I can infer. 

Presumably, it is not contained in the broader meaning of the rights contained in the U.S. Constitution or the Bill of Rights.

For more:


- Rights in Public Spaces.

This chapter discusses the rights of low-income persons, including those who “look poor” or homeless, to travel, to become members of a community, and to use public spaces, such as streets, parks, libraries, and post offices. Many localities have adopted “quality of life” regulations that restrict and even criminalize acts that are innocent when done in the privacy of one’s home, such as sleeping or eating, but become illegal when done in public. The chapter sets out the constitutional right to travel from state to state and within a state, and describes the practical and legal barriers that exist to the actualization of that right, such as the absence of public transportation or not having money to buy a car. Attention is given to the constitutional status of residency requirements and how they impact efforts to obtain better housing and schooling. It explores permissible limits on rights to use public spaces, and protections that may be invoked in many typical encounters with the police, such as demands for identification cards or the seizure of possessions temporarily left in a park. Practical advice is given about library services and mail delivery, as well as how to get licenses for commercial activities that make use of public spaces, including street vending.


- “You Can’t Be Here”: The Homeless and the Right to Remain in Public Space.

In cities throughout the country, homeless individuals are continuously relocated from place to place and faced with the quandary that by engaging in basic life activities they are breaking the law. Many of these individuals and their legal advocates have argued that laws prohibiting the homeless from sleeping or sitting down in public make it effectively impossible for them to exist, violating the Eighth Amendment ban on cruel and unusual punishments and the right to travel derived from the Fourteenth Amendment. However, the vast majority of courts have rejected these arguments because they do not readily fit into existing doctrines.


- What is The Right to Public Space?

The right to public space is not among the more conventional human rights such as the right to an adequate standard of living, the right to adequate housing, or the freedom of religion or expression. Public space is usually guaranteed by default under the right to freedom of speech or the right to peaceful assembly and association. Still, some countries have made the right to public space explicit in their constitution. Colombia was the first. The 1991 Constitution states, “It is the duty of the state to protect the integrity of public space and its assignment to common use, which has priority over the individual interest.” This constitution was drafted during a time when Bogota, Colombia’s capital, was considered one of the most dangerous places in the world due to political violence and large swathes of the country were controlled by guerilla groups and drug cartels. Citizens were on edge and the public spaces throughout the country were fractured. By guaranteeing the right to public space, the State has made a commitment to protecting the social fabric of the nation.


- The Right to Public Space.

The rights in the United Nations’ Universal Declaration of Human Rights depend, practically, on having public spaces in which to exercise them, including the right to work (whether traveling to work, setting up shop on the sidewalk, lining up as a day laborer, or advertising one’s services), the right to form and join trade unions, freedom of conscience and religion (whether men praying on the sidewalk outside an overflowing mosque, the faithful street preaching and evangelizing, or observers publicly displaying their affiliation through what they wear) and the right to rest and leisure.

From Vanity Fair: Republicans Proudly Declare They’re Against Making Contraception a Federal Right

As we discuss in class, aside from the small number of rights specifically stated in the First Amendment everything else is subject for debate. Since Dobbs v Jackson, this could also mean birth control.

- Click here for the article.

On Wednesday, Senate Republicans rejected the Right to Contraception Act, a Democratic bill that would stop the federal government and states from passing laws limiting access to birth control. Speaking to The Washington Post, Senator Joni Ernst called the bill “fear-mongering,” and introduced one that does not protect access to the morning-after pill. Senator John Cornyn claimed Democrats are holding a “phony vote because contraception to my knowledge is not illegal. It’s not unavailable. To suggest that it’s somehow in jeopardy should be embarrassing, but it’s hard to embarrass some people around here.”

Of course, what people like Cornyn don’t note is that that’s the exact argument Republicans used to make about abortion, before the federal right to the medical procedure was summarily scrapped. Referring to Supreme Court Justice Clarence Thomas’s 2022 declaration that the court “should reconsider” some of its past decisions, including the one protecting access to contraception, Senator Mazie Hirono told ABC News: “Whenever a Supreme Court justice, especially in the MAGA far right, says he wants to revisit a case, you can bet that he’s looking to overturn.” In a speech on the Senate floor on Wednesday, Minority Leader Chuck Schumer warned: “A few years ago it was Roe. A few years from now it could be something else. We are kidding ourselves if we think the hard right is done with their attacks on reproductive rights.”

Last month, Donald Trump was asked in an interview, “Do you support any restrictions on a person’s right to contraception?” And rather than saying a simple “no,” he responded: “We’re looking at that, and I’m gonna have a policy on that very shortly, and I think it’s something that you’ll find interesting. And it’s another issue that’s very interesting, but you will find it, I think, very smart; I think it’s a smart decision. But we’ll be releasing it very soon.”

Is there a constitutional right to protest?

The word does not exist in the Constitution, so it requires interpretation.

- From the ACLU of Oregon:

You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks. But in some cases the government can impose restrictions on this kind of activity by requiring permits. This is constitutional as long as the permit requirements are reasonable, and treat all groups the same no matter what the focus of the rally or protest.

The government cannot impose permit restrictions or deny a permit simply because it does not like the message of a certain speaker or group.

- More from the ACLU of Northern California.

How far doe this right extend? Did it apply to the Occupy Movement?

- Detail from ProPublica: Just How Much Can the State Restrict a Peaceful Protest?

The First Amendment is not absolute. Government can make reasonable stipulations about the time, place and manner a peaceable protest can take place, as long as those restrictions are applied in a content-neutral way.

But what constitutes a reasonable time, place and manner restriction? "It depends on the context and circumstances," said Geoffrey Stone, a professor specializing in constitutional law at the University of Chicago. "Things like noise, blockage of ordinary uses of the place, blockage of traffic and destruction of property allow the government to regulate speakers."

Stone gave a few examples of impeding ordinary usage: disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time.

Protests are fine, occupation is not.

- So says the Federalist Blog.

. . . the federal right to assemble was “to protect the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.” The Supreme Court case of United States v. Cruikshank observed the purpose of assembly was for petitioning government: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.”

In England, the right of assembly existed from early times and was strictly tied to the right of petitioning Parliament for political purposes, which the crown had always strongly contested. Different acts of the Tudors and Stuarts sought to limit and restrict assembly.

There is a big difference between gathering to draw public attention to some grievance or message through disruption of the public peace and peacefully gathering to address common public concerns and to circulate a petition for signature. The later requires no mob occupation or disruption of the peace or laws.

From a purely historical standpoint, “Occupy Wall Street” is nothing more than rebellion, and as such generally been dealt with by use of the militia to suppress.

From The Dish: An Online Right To Be Forgotten?

It's the 4th of July - which is really all about barbecue and fireworks - but also supposedly about the signing the Declaration of Independence. I try to spend a good bit of time in early slides analyzing the argument it contains and the history leading up to it.

I try to draw attention to this open ended part of it: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. 

In lecture classes I like to generate a discussion about the word "among" which seems to suggest that other rights exist beyond those three listed. Is this in fact that case and if so what might those rights be? How would we figure this out?

The recent decision by the European Union Court of Justice that there is a right to be forgotten would be a perfect subject. This Dish links to a variety of stories discussing the right and the difficulty we might have in enforcing it.

- Click here for the post.

The digital revolution - which makes information retrieval easy - might make this impossible. And ironically, the more we actively try to conceal parts of out past, the more we highlight it. It's one thing to claim a right, a trickier thing to enforce it.

It just occurred to me that early Texas was populated by people who were trying to make themselves forgotten - by creditors, law enforcement and others. Life was different then.

About those other rights

Apparently other people have been thinking about the question I asked 2301s earlier this semester:

Jefferson says that we are endowed with “certain” rights, and that life, liberty, and the pursuit of happiness are “among these.” He does not claim to offer an exhaustive list. Indeed he draws attention to the possibility that other “unalienable” rights might be added to it. And he gives us that potent phrase “the pursuit of happiness.” We are to seek our well-being as we define our well-being and determine for ourselves the means by which it might be achieved.

Laws and Rules Invented by Reason

A great video from Niall Ferguson hits some of the material we covered in 2301, what makes western societies different - and prosperous is the ideas and institutions that they are based on.

"A tyrannical government is not a legitimate government"

This is an important and provocative post from David Kopel. I need to add this to my 2301 lecture on natural rights. The author quotes a variety of classical authors who make arguments against the legitimacy of tyrannical governments, likening them to robbers. A tyrannical government is not a legitimate government. That statement should make sense if you properly understand the argument made in the Declaration of Independence.

Consider this required reading.

Obviously the post relates to current issues regarding Libya, but it gives no hint about what pragmatic steps can be taken to deal with tyrannical governments. Is there an obligation to remove them from power?

On Dialogue, Democracy, and Unalienable Rights

Two recent events call to mind continuing conflict over the role dialogue is supposed to play in policy formation, and whether we are committed to a full discussion of controversial topics, or prefer that people simply keep their mouths shut.

The first came to light during exchanges in hearings before the House Permanent Select Committee on Intelligence by Mike McConnell, the Director of National Intelligence. The topic was whether the temporary suspension of the need for intelligence agents to get warrants before they intercept messages from foreign suspects directed to Americans. The bulk of the dispute concerns whether the requirement imposed a time limit that would limit the effectiveness of the searches, but a more subtle, and perhaps significant exchange touched on the hearings themselves and the very fact that these issues are being debated at all (from an ABC news story):

"Some committee members questioned McConnell's credibility, especially comments he made to the El Paso Times last month that Americans would die because of open testimony in Congress. In that interview, McConnell was asked by the reporter, "So you're saying that the reporting and the debate in Congress mean that some Americans are going to die?"

McConnell responded by saying, "That's what I mean -- because we have made it so public. We used to do these things very differently, but for whatever reason it's a democratic process and sunshine's a good thing."

Rep. Anna Eshoo, D-Calif., told McConnell, "You're saying and standing by that, your previous statement, that when we debate these issues in the Congress of the United States, which is our system, that Americans -- some Americans -- are going to die. And I really think that's a stretch. And I think because of some of these things, it has done damage to what you bring forward. It puts a dent in the credibility."

This dilemma, unique to democratic governments, has been noted before. Alexis de Tocqueville suggested that democracies would be disadvantaged in military disputes because of this need for transparency. Secrecy allows for effective defense policymaking, but creates opportunities for abuse. On the one hand, McConnell may be making a valid point about what is necessary for him to do his job effectively, but he could also simply be defending his turf.

The second event is the Iranian President Ahmadinejad's visit to New York, and his public speaking engagements while there--notably his address to an audience at Columbia University.

Some argued that he should not have been allowed to speak at all given his controversial views on subjects ranging from the existence of Israel, to whether the Holocaust really happened, and the treatment of women and dissident groups in his country.

Others claim that the right to free speech requires all points of view to be debated in open forums, to compete in the marketplace of ideas. Oliver Wendel Holmes, in a Supreme Court decision, suggested that when we stifle a viewpoint we may be betraying a suspicion that we cannot successfully argue against it. If we think someone is wrong, we should give them the opportunity to speak their views and argue against it.

Personally I'm one the side of both transparency and open debate and believe that our nation is stronger as a result of both, but grows weaker when they are not allowed.

In 2301 we spend sometime speculating about the meaning of the term "among" in the Declaration of Independence's unalienable rights clause ("among these rights are life, liberty and the pursuit of happiness"). Other rights exist. Might one be the right to information?