Free Speech Curtailed Based on Government Security Interests

by Roger Alford

The Tenth Circuit last week rendered a nice little opinion addressing the relationship between terrorism, free speech, and security zones at inter-governmental conferences. The gist of the argument in Citizens for Peace in Space v. City of Colorado Springs is that free speech rights diminish as government interests in security are heightened. Translation: protesters’ rights are going to succumb to the international relations’ concerns for broader security zones to protect foreign officials from terrorism. Here is an excerpt:

In this case, the City asserts that a wide security zone was necessary because of the need to keep the conference outside the blast radius of any explosion that might have been caused by vehicle or human-borne explosives. The City also asserts, that given that so many defense leaders were gathered in one location, it needed an extra margin for error. In other words, it needed a deep security zone so that its officers would have more reaction time to fend off any terrorist or other threat before the conference delegates were placed in imminent danger. Furthermore, the exclusion of protestors from the security zone allowed the City to devote its officers to maintaining the perimeter and fending off any possible terrorist attacks, rather than having its officers monitor protestors, which would have required the City to staff twice as many officers at the conference.

The nature of the NATO conference bears not only on the conceded “significant interest” component of the time, place, and manner analysis, but also on the “narrowly tailored” component. While an extremely important government interest does not dictate the result in time, place, and manner cases, the significance of the government interest bears an inverse relationship to the rigor of the narrowly tailored analysis.

In this case, there can be no doubt that the City’s interest in providing security to a gathering of defense officials is of the highest order. We also cannot ignore the fact that the City’s chosen method of providing security was part of a security protocol that was created by Department of Defense officials, NATO personnel, and various international defense agencies. Courts have historically given special deference to other branches in matters relating to foreign affairs, international relations, and national security; even when constitutional rights are invoked by a plaintiff.

I agree with the decision. I think it is particularly important to note the role of international relations in the constitutional interpretation at play here. Concerns of foreign relations are being used as a factor in the compelling government interest analysis to curtail constitutional rights. That is not the normal way that ones thinks of international relations impacting constitutional interpretation, such as the Roper arguments asserted by Harold Koh and others for expanding rights based on international relations’ concerns. But the Court’s approach makes perfect sense to me.

I have written about this in a current article just published in the Ohio State Law Journal entitled “Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy,” In that article I argue that:

If a constitutional Charming Betsy is inappropriate to delineate the content of constitutional liberties, what role, if any, should foreign relations play? If a foreign relations concern does not define constitutional guarantees, does it offer any illumination on the contours of constitutional law? The answer, in brief, is that foreign relations concerns play a traditional and central role in justifying government authority to curtail constitutional liberties. From the perspective of constitutional guarantees, its role is thus almost always negative, by which the government asserts the need to diminish individual liberties in furtherance of legitimate government ends. Far from securing freedoms consistent with international norms, foreign relations concerns circumscribe constitutional liberties consistent with reasonable political ends. A constitutional Charming Betsy presumes that the courts will attempt to interpret constitutional liberties consistent with international law so as to liberate the executive branch in the conduct of foreign affairs. But instead constitutional interpretation frequently requires courts to interpret constitutional liberties in light of asserted executive foreign affairs demands…. [P]roponents of a constitutional Charming Betsy appear to assume that foreign relations are exogenous concerns that impinge upon the political structure in constitutional decision-making. External pressure is brought to bear on the executive in its conduct of foreign affairs, and this is deemed to have constitutional import for the Court. When in fact foreign affairs concerns are endogenous factors produced within the constitutional system that the political branches take into account in granting or curtailing individual liberties. The political branches afford rights consistent with international obligations, and sometimes they curtail rights consistent with legitimate foreign policy objectives. The exigencies of foreign affairs may afford occasion for the political branches to grant legislative or executive privileges that expand basic rights through democratic process. But such exigencies may also occasion the curtailment of constitutional liberties. It is the political branches – not the courts – that factor the relevance of international discord in constitutional problems.

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