By Charles C. Haynes
First Amendment Center senior scholar
The latest plan for domesticating free speech comes, from all places, the National Park Service.
Earlier this month Park Service officials invited public comment on new ideas for managing the National Mall in Washington, D.C., including a proposal for paving over a reflecting pool near the Capitol and converting it into a site for demonstrations and other events.
As every schoolchild learns, the Mall has long been the prime destination for protesters of all stripes and causes exercising their First Amendment right to speak, assemble and petition. Demonstrations on the Mall — everything from the historic March on Washington in 1963 to the anti-abortion rally Jan. 22 — are emblematic of American freedom.
According to the Park Service, half of the 3,000 permits it grants every year for events on the Mall are for demonstrations.
All of that protesting tramples a lot of grass. Hence the proposal to save wear and tear on the Mall by building a nice, clean space to contain the messy demonstrations. Park Service officials say that big protests could still spill across the Mall, but the vast majority of demonstrations could “fit tidily” in the proposed venue.
And there’s the rub. Talk about “tidy” demonstrations raises red flags for free-speech advocates across the political spectrum. Americans don’t march on Washington only to be cordoned off in a neat and tidy space (restrooms and microphones provided). They come to raise their voice, demand change — and, yes, kick up some dust.
Some activists have already dubbed the proposed demonstration site a “protest pit” that would limit access to the Mall and inhibit free expression. Park Service officials insist that creating a place to protest helps preserve the Mall and is part of the “reasonable time, place and manner” restrictions allowed by law.
For critics of the plan, the key word is “reasonable.” Protesters can understand why they can’t block traffic or interfere with access to buildings. But they have a hard time accepting a free-speech ghetto as reasonable, even if well-intentioned.
If the negative reaction to the plan strikes you as overly alarmist, consider that we live in a time when government officials, political parties and even public universities are finding ever-more-creative ways to avoid hearing what they do not want to hear.
Try, for example, to get close enough to be heard or seen with a message of dissent at any presidential event in any part of the country. You’re likely to be told by the police — at the insistence of the Secret Service — to move to a designated protest zone some distance away. Out of sight, out of mind.
Both major political parties have found ways to limit the PR damage of unsightly demonstrations at the nominating conventions every four years: Herd protesters into free-speech cattle pens where they can rant and rave to their heart’s content without disturbing the lavish parties paid for by corporate donors.
And on some public college and university campuses — purported havens for free expression — you will find “free-speech zones” to minimize the danger of anyone’s being disturbed or offended by unpopular speech. If this weren’t so chilling, we might laugh at what has become a parody of academic freedom.
Whether by design or not, the Park Service proposal threatens to take the nation full circle back to the time when protest near the Capitol was barred by the 1882 Act to Regulate the Use of Capitol Grounds — a law that was not overturned until 1972.
In 1894, the very first “march on Washington” by a rag-tag band of 500 unemployed Americans attempted to defy that law by entering the Capitol grounds to present a petition for economic justice. After marching hundreds of miles, the protesters were stopped, their leaders arrested and the march dispersed.
“Coxey’s army,” named after its leader Jacob Coxey, may have failed to reach its goal, but the bold attempt signaled the birth of a great American tradition. As a newspaper reporter wrote in 1937, the thousands of marchers who followed “established Washington as the most marched-upon place in the world.”
Demonstrating on the National Mall is not a nuisance to be managed; it is a right to be cherished. The Park Service should worry less about trampled grass — and more about trampling on freedom.
Charles C. Haynes is senior scholar at the First Amendment Center, 555 Pennsylvania Ave., Washington D.C., 20001. Web: firstamendmentcenter.org. E-mail: [email protected].