By Gene Policinski
First Amendment Center vice president/executive director
Just when do I get to rain on your parade?
Anti-war vets were banned recently from marching in the 11th Veterans Day Parade in Long Beach, Calif. In past years, anti-war marchers, protesters for and against abortion, and gay and lesbian groups have been barred from marching in holiday parades around the nation.
The parade in Long Beach was being held, according to sponsors, as an expression of gratitude for military service — with the event having no particular political point of view. Vets opposing the war in Iraq said they wanted to pay tribute too, but also while marching to advocate for withdrawal of American forces.
The dispute pits one freedom in the First Amendment, free speech, against another: the right to peaceably assemble. Sorting out which freedom gets to predominate in a given parade, demonstration or public event depends a lot on who is assembling, according to the courts.
In Long Beach, City Attorney Bob Shannon got it right when he said on Nov. 7 that the parade committee was a private, nonprofit organization that had a right to choose its participants. The parade committee “has the First Amendment right to exclude whoever they wish if [the entry] does not keep within the theme,” he said.
The courts have held that we get to assemble with people of like minds for the purpose of expressing ourselves from a common point of view or belief — so-called “expressive association.” Sometimes that means one group can exclude people with a message distinctly challenging the group’s point of view: Organizers of a private group opposing drug use are not obligated — even when marching on public streets, perhaps with local police directing traffic — to accept marchers from a group advocating legalization of marijuana. Church and fraternal groups organizing a parade noting a religious holiday have the right, the courts say, to exclude a float advocating ideals in opposition to their beliefs — as when gay-rights advocates were excluded from a St. Patrick’s Day parade.
Key here is that it is neither the government nor a judge deciding whether the message — either of the organizers or those wishing to participate — is “right.” So even those with messages many Americans would reject may assemble and put their views squarely before the public.
There are instances in which even private organizations can be compelled to permit disparate points of view at their event — generally when public support or funds are so intertwined that we cannot tell if an event is public or private.
A 2006 federal appeals court ruling involved an annual Memorial Day air show in Columbia, Mo., which also includes ceremonies honoring fallen military veterans. There were people at the event in 2004 and 2005 with protest signs, handing out anti-war leaflets or seeking signatures for a petition involving renewable energy sources. At one time or another, local police confiscated the leaflets and threatened the petitioners (also exercising a First Amendment freedom, by the way) with arrest for trespass, though that never came about.
The 8th U.S. Circuit Court of Appeals ruled that the air-show sponsors — and the city — had to allow the various “participants” to carry signs and circulate leaflets and petitions. Why? Because so much support was provided by local and Defense Department officials that, in effect, it was impossible to consider the air show a private function. Likewise, the activities did not disrupt the show, attended by 25,000 people in 2005, or prevent event organizers from holding their memorial service, or confuse the public about the event’s message.
That’s not splitting hairs — that’s balancing constitutional rights. And in Long Beach, and elsewhere, anti-war protesters are free to have their own parade — and, presumably, to reject an application from groups supporting White House policies in Iraq.
Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: www.firstamendmentcenter.org. E-mail: [email protected].