The author of "Reclaiming the Petition Clause: Seditious Libel, ‘Offensive’ Protest, and the Right to Petition the Government for a Redress of Grievances" (info in Amazon) thinks so:
EVERY four years, we witness the spectacle of the presidential nominating conventions. And every four years, host cities, party leaders and police officials devise ever more creative ways of distancing protesters from the politicians, delegates and journalists attending these stage-managed affairs.
The goal is to trivialize and isolate dissenting speech without actually banning protest outright. One result is something of a Potemkin village: government proclaims its full commitment to respecting the First Amendment without actually permitting any observable dissent to take place near the convention.
Tampa, Fla., which will host the Republicans from Aug. 27 to 30, and Charlotte, N.C., which will host the Democrats from Sept. 3 to 7, are already following the trend. Charlotte has adopted an ordinance that expands the power of the local police to detain, search and arrest persons in its downtown core. (The Charlotte ordinance also bans camping on city-owned property, a clear response to the Occupy movement.) Tampa is also considering new municipal laws to limit, and in some instances flatly prohibit, downtown protest activity.
Citizens generally have a right to use public streets, sidewalks and parks for expressive activity — unless the government has a substantial reason for requiring expressive activity to take place somewhere else or at another time. Because the rights of speech, assembly and association do not include a right to communicate a particular message to a particular audience, the government’s willingness to let would-be protesters speak somewhere else, some other time, has usually been seen by courts as satisfying the First Amendment.
. . . Unfortunately, the Supreme Court has not accorded the Petition Clause much legal significance. When litigants have pressed Petition Clause claims, the justices have noted that all First Amendment rights are “cut from the same cloth” and thus “are inseparable.” However, in Borough of Duryea v. Guarnieri, a Petition Clause case decided last year, Justice Anthony M. Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation.”
This suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition. Officials in Charlotte and Tampa should not reflexively equate dissent with criminality (or domestic terrorism), nor should they have to be sued to do the right thing.
I strongly advise 2301 students to read this op-ed. It's worth a class discussion. The right to petition for grievances has a long and important history which led to the establishment of the U.S. as we know it. It may well be the right that all other rights rest on. If this right is threatened, what else is threatened?
