Sunday, October 17, 2004

I'm not sure I understand this one
I'd like to hear what Eugene Volokh has to say about this: CNN.com - Terror fears don't trump Constitution, court rules: "Fears of a terrorist attack are not sufficient reason for authorities to search people at a protest, a federal appeals court has ruled, saying September 11, 2001, 'cannot be the day liberty perished.'
A three-judge panel of the 11th Circuit Court of Appeals ruled unanimously Friday that protesters may not be required to pass through metal detectors when they gather next month for a rally against a U.S. training academy for Latin American soldiers."


I'm a little confused by this decision. Having not read the actual decision, or any criticisms, it's hard for me to distinguish between metal detectors in this circumstance, and before boarding an airplane. It seems that, if you want to go somewhere specific, you may have to give up a little bit of your personal liberty in order to be secure. Is that really an abuse of the Constitution? In my opinion, it's not an illegal search and seizure if you have a right to not attend the event.

3 comments:

Matto said...

I'm no Eugene, but this is my shot at the Fourth Amendment issue.

Anonymous said...

After skimming the opinion (http://www.ca11.uscourts.gov/opinions/index.php), I agree wholeheartedly with the Justices' decision ruling against the city. In fact, the conservative opinion you represent seems unjustified in the face of overwhelming logical support for the protesters. My brief opinion follows.

First, it seems that the City would have to be justified in order to impose restrictions on peaceful protests. In my mind, justification would come in the form of historical actions or physical evidence. However, "throughout the thirteen-year history of these protests, no weapons have ever been found at the protest site, and no protestor has ever been arrested for an act of violence." Judging by past actions, it seems that there is no basis in history for these searches.

In addition, the city's hard evidence is non-existent. The City argues that the terror alert has risen, and this gives them the right to closely monitor large groups of people. Unfortunately, the terror alert has risen to this level at least 6 times in the past 3 years. This argument, then, is not valid either.

As the defendents point out, under the City of Alabama's plan, "mass suspicion-less searches could be implemented for aevery person who attends any large event including: a high school graduation, a church picnic....and if the governement began to choose amongst theese groups, viewpoint discriminiation would likely result." Any law restricting free speech must be narrowly tailored to do so (any intro law class will discuss those precedents), and this law isn't.

The court also agrees that the " fourth amendment embodies a value judgment by the Framers that prevents us from gradually trading ever-increasing amounts of freedom and privacy for additional security" Furthermore, it continues to argue that these searches must be based on hard evidence, not mere threat. Your opinion, although valid, directly contradicts with that of the Justices'. I believe that you might agree hard evidence is needed, and that the threat of terrorism (being everpresent), does not validate that cause. In the end, the City failed to prove that the searches were necessary to avoid some substantive evil. The argument was broad, and open to certain abuse.

Regarding the first amendment, the city's attempt to use metal detectors violates the protestor's first amendment right in at least 5 ways, but I will only discuss those I deem the most important. First and foremost, it is a prior restraint on free speech. Brian commented that "in my opinion, it's not an illegal search and seizure if you have a right to not attend the event. " This is akin to arguing that a protester has the right to remain silent, so restrictions on free speech are permissible. I see many arguments in favor of the Justice's opinion, and very few opposed. The search policy was based on restricting the content of the speech, not the act of speaking. This has been ruled against in many Supreme Court decisions. Lastly, the only restrictions on free speech are time, place, or manner restrictions. As a result, protesters were forced to "surrender their Fourth Amendment rights in order to exercise thier First Amendment rights. "

In the end, I agree with the Justices. Your comment regarding the right of a citizen to freely attend a protest seems uncharacteristically below you.

I apologize for any spelling or grammatical mistakes, its late, and i'm tired. Keep up the good work, I continually find the site intriguing.

Alex

Tanstaafl said...

Out of curiosity, were the metal detectors meant to prevent one of the protestors from bringing a weapon, or were they meant to prevent a terrorist unrelated to the protest's cause or message from using the crowd as cover and victims for an attack? I'm not sure that it changes the answer, but I feel that the latter would indicate at least a more pure motive on the government's part