November 23, 2011 02:17 AM UTC

Lawsuit Filed in Federal Court to Prevent Suppression of Speech in Denver

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• by: Danny the Red (hair)

( – promoted by Colorado Pols)

http://www.huffingtonpost.com/…

A lawsuit was filed today to prevent the use of disproportionate policing to suppress Occupy Denver.

The news outlets will discuss the conduct, but I thought I would take a little time to explain what the first amendment means and how and when it can be limited.  

Before we get to what the government is trying to limit, normally referred to as either Track 1 Communicative Impact (what the expression means) vs. Track Two Non-communicative Impact (how the expression is done), it is useful to discus how we determine the government’s true purpose because Track 1 analysis enjoys almost perfect protection and Track 2 analysis enjoys less protection.

When you hear people talk about “time, manner, place” restrictions they are generally talking about Track 2 analysis.

Government, knowing that track 1 enjoys almost unlimited protection, will rarely admit that its goal is to suppress speech based on content.  

Justice Kagan when she was a mere attorney noted this in a paper when she wrote

First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine

comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting.

http://publicintelligence.net/…

The government knows that if there was an ordinance that said “No one is allowed to criticize the 1%” that would be illegal on its face, but a law does not need to be facial invalid to be improper.

Equal protection through the 14th amendment has many applications, the most relevant in this context is how ordinances that are facial valid can be invalid because they are used to suppress a fundamental right.  Under equal protection two persons must be treated the same when they are similarly situated.  However, this isn’t just on a statute’s face, but on its application as well.  If a statute is administered in a purposely discriminatory way it can be determined to be a violation of equal protection as applied.

We are most used to seeing Equal Protection used in race cases.  History on this goes all the way back to Yick v. Hopkins in 1886 in which an otherwise facially valid law was used to grant permits to all of the white applicants and none to the 200 Chinese applicants.

This clear violation of equal protection in Yick and its brethren can only be understood if the analysis of law as applied.  Which brings us to Occupy Denver and the conduct of the government.

In Mayor Hancock’s own words “protesters should expect a consistent police presence.” Consistent with what? Ticketing people selectively for, honking horns, setting items on the sidewalk, stopping momentarily to give a donation or any other of petty offense based on their affiliation with or support of Occupy Denver’s message is an impermissible violation of equal protection.  Perhaps the Mayor meant inconsistent or constant, both of which would be improper: the law must be applied to all if it can be applied to any.

In fact, this obviously disproportionate application of police power attacks even the generally permissive track 2 time manner and place restrictions.  If the goal is to suppress the speech, all actions of the government are called into question, even if they appear legitimate on the surface.

We have all laughed at the honk and wave hypocrisy, but the threat to democracy and the constitution is real.