Legal Commentary

The AP reports (via First Amendment Center) about negotiations taking place between Denver police and certain protest groups to establish rules and details about parades and parades for next month's Democratic National Convention. Similar negotiations are underway between protesters and police in Minneapolis and St. Paul in advance of the Republican National Convention. The goal of such negotiations is to "make sure everybody is on the same page to clear up any misunderstandings and rumors that are out there." As a police spokesperson said, "Instead of a bullhorn (on the streets) you?re having a conversation across the table." Of course, by negotiating all the rules in advance, protesters bind themselves to play by the government's rules, although those rules are increasingly restrictive and inconsistent with vigorous public expression and the fullest opportunity for individuals and groups to engage in meaningful speech. Last week, a district judge in Minnesota rejected challenges to limits on parade routes outside the convention center.

Timothy Zick has done some great work criticizing what he calls "negotiated management," through which protester and protest target (the government) agree to minute details as to the timing, routes, locations, participation, and all aspects of large-scale expressive events. The result is that public expression is less spontaneous and more controlled and the message carries less "sting." This is a part of the broader problem of what Zick calls the "institutionalization" of public contention, which has routinized and neutered public protest and speech. Ironically, negotiation makes confrontation and violence between police and protesters more likely, since even the slightest deviation from the precise protest/parade guidelines (which, of course, the protesters agreed to) likely will be met with massive police resistance, crowd disperals, and mass arrests.

My current project (hopefully to be submitted early next month) looks at the connection between video and civil-rights enforcement, particularly in cases of police confrontations at protests. In it, I use Zick's arguments as a starting point to discuss the increasing importance of video as an issue in civil-rights disputes arising from protests-gone-wrong. First, the media presence (and media recording of these events) at such protests tends to be greater, because the high potential for conflict from a larger, tightly managed protest with a heavy police presence is a media draw. Second, protesters themselves are capable of capturing protests-gone-wrong on video. The recording then can be disseminated (through YouTube, blogs, etc.) as part of its group's protest message ("Look at how we were stopped from speaking out") and can be used as evidence in the § 1983 First Amendment actions that inevitably follow the indiscriminate mass arrests and police crackdowns against otherwise peaceful protesters who step out of line (literally) or whose numbers overwhelm police.

For all the talk about unprecedented protester access and establishing conversant relations between police and protesters, expect both conventions to contain more of what we saw in Philadelphia in 2000 and New York in 2004. And expect much of it to be captured on video.