NATO Summit Q&A: David Franklin, DePaul University Law

David Franklin Photo by Josclynn Brandon

David Franklin, vice dean at the DePaul University College of Law. (Photo by Josclynn Brandon)

NATO LogoBy Josclynn Brandon and Angelica Robinson
The Red Line Project

Posted: Thursday, April 26, 2012

It's no secret: Several free speech and First Amendment issues will be at stake with the NATO summit being held in Chicago May 20-21 at McCormick Place.

David Franklin, vice dean of DePaul University’s College of Law, said that both summit protestors and public safety officials need to be aware of their rights, particularly as it pertains to the First Amendment.

Franklin is a constitutional scholar and former law clerk for U.S. Supreme Court Justice Ruth Bader Ginsburg. He graduated summa cum laude from Yale University and received his law degree from the University of Chicago. 

His writings have been published in the Yale Law Journal, Chicago Tribune and the Washington Post. In addition to serving as vice dean, he also teaches Conflict of Laws and Constitutional Process. 

In this Q&A, Franklin clarified the restrictions the government may place on protests, how to determine if these restrictions can be deemed unconstitutional, and what government officials and protestors should know prior to summit.

Q. In regard to the First Amendment, can you explain how or why the government is able to place restrictions on our freedom of speech or assembly?

A. The First Amendment says there should be no law abridging the freedom of speech, what it really means is that the government is not allowed to restrict speech because it is afraid of, or concerned about, or opposes the message of the speech. The government is allowed to restrict speech on neutral, non-content based grounds. For example it’s OK for the government to say no loudspeakers after midnight, particularly in residential neighborhoods, because the desire to restrict noise because whatever noise it may be is a content neutral interest.

Q.  Can you tell us about chilling speech and what that means in regards to protesting?

A.  The concept of chilling speech is quite important in the area of the First Amendment. The idea of chilling speech would come into play when you have a law that has vague or ambiguous terms. That could apply to an act of speech or expression. When you have a person who wants to engage in an act or expression but they look at the law and think, “Gosh I don’t know whether my speech or expression is going to subject me to possible penalties, maybe criminal penalties.” So in the interest of playing it safe he or she will censor themselves. That’s a situation where a person who engages in self-censorship has been chilled, and been chilled by a law that’s more vague than it should be.

Q.  Mayor Emanuel implemented several protest restrictions, including reducing the duration of demonstrations and doubling the fines for arrests of demonstrators. Some feel this impedes on and perhaps chills First Amendment speech. What do you think about this?

A. I do not think this is a case of chilling speech. Here you have people who know what they are about, want to speak, want to march, want to demonstrate and the city is telling them they can only do it, but only at certain times, certain places. That’s clear it’s not vague or ambiguous. It’s not so much an issue of chilling. It’s simply an issue of regulating speech. And then the question becomes whether the regulation of speech is consistent with the First Amendment, or inconsistent and therefore unconstitutional. 

Q.  Is there any particular formula lawmakers would use to determine if a particular restriction is consistent with the first amendment?

A.  It’s very contextual. It’s very fact-specific. And it’s a case-by-case inquiry. But there are some guideposts. What courts tend to care about most in cases like this is whether there are indications that the government is regulating, penalizing, or restricting speech because of the message of the speech. So the technical legal term for this is content neutrality. 

Q. Can you explain a little bit more about the concept of “content neutrality”?

A. Courts insist on content neutrality if a regulation of speech is deemed to be content based. If a court concludes the government is restricting speech because of the message that the speech is trying to convey then it is very difficult for the government to get away with that restriction. Most content-based restrictions are struck down as unconstitutional by the courts. If a court concludes that a regulation of speech is content neutral, that is to say it doesn’t restrict speech because of its message, then the court will apply a much more lenient constitutional test. 

Q. How will the courts determine if the decision is content neutral?

A. The court will simply ask if the government is pursing important interest in a reasonable way, and leaving open some alternative channel or avenue for the speech to get across. That test tends to be applied in a pretty government friendly way by most courts. In most situations once a court answers that first question by saying that the restriction we are talking about here is content neutral then it will apply the resulting muilti-factor test in a pretty lenient way. Governments have a fair amount of leeway in terms of how they go about regulating the time place and manner of speech 

Q. What do you think is important for protestors to know before participating in demonstrations?

A. People need to understand their constitutional rights. What important for both protestors and public safety to know are the precise meets and bounds of whatever it is that they are allowed to do. If they get a permit to march from point A to point B along a particular route at a particular time then it is incumbent on the police to know that but also the protest organizers to know what those meets and bounds are because if they stray outside of them there is going to be confusion, mixed messages, or could be something worse. It could be mayhem. 

Related: First Amendment at Center of Protestors' Conflict

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