WEBVTT - Volokh on Where Protesters Can be During Inauguration (Audio)

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<v Speaker 1>Donald Trump's inauguration isn't for another two months, but there's

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<v Speaker 1>already a court fight over where protests can take place

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<v Speaker 1>along the route of the inaugural parade. The fight actually

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<v Speaker 1>predates the election, but it has taken on a new

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<v Speaker 1>dynamic after Trump's surprise victory. That's in part because the

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<v Speaker 1>parade will travel right past the Trump International Hotel. A

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<v Speaker 1>federal appeals court this week heard arguments on a challenge

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<v Speaker 1>to National Park Service regulations that give the president elects

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<v Speaker 1>Inaugural Committee control over the sidewalk in front of the

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<v Speaker 1>Trump Hotel, as well as some other places along the

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<v Speaker 1>parade route. The challenge comes from would be demonstrators known

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<v Speaker 1>as the Answer Coalition, and that stands for Act Now

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<v Speaker 1>to Stop War and End Racism. And that group says

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<v Speaker 1>the space should be open to the public with us

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<v Speaker 1>to discuss the issue. As one of our favorite guests,

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<v Speaker 1>Eugene Volak, a law professor at the u c l

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<v Speaker 1>a s. School of Law, Eugene, this is a long

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<v Speaker 1>running legal fight. In the last ruling, Federal District Judge

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<v Speaker 1>Judge Friedman sided with the government. Can you just give

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<v Speaker 1>us the basics of of Judge Friedman said, sure. So

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<v Speaker 1>basically people have a right to parade and protests and demonstrate.

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<v Speaker 1>But sometimes you have two organizations that want to have

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<v Speaker 1>a parade, protest or demonstration in the same place. What

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<v Speaker 1>do you do. In some situations there are rules that

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<v Speaker 1>come up like first come, first servative, some sort or

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<v Speaker 1>something along those lines. In this instance, the regulations a

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<v Speaker 1>favor the essentially not quite the government, but a government

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<v Speaker 1>chosen speaker, which is to say, uh, the inauguration committee uh.

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<v Speaker 1>And the theory being that this is a this is

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<v Speaker 1>a parade that's organized for kind of governmental purposes, even

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<v Speaker 1>if it's organized by a facially uh private organization, and

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<v Speaker 1>that the government is entitled to say, look, we get

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<v Speaker 1>preferential access to this so long as there are ample

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<v Speaker 1>other places along the rade route where where other protesters

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<v Speaker 1>can speak. And this kind of government preferential access for

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<v Speaker 1>speech is actually pretty commonplace. So, for example, when you're

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<v Speaker 1>talking about things like posting posting signs either like road

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<v Speaker 1>signs or traffic control signs, or or for that matter,

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<v Speaker 1>just things that are posted along the street, um, the

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<v Speaker 1>government often says, look, we're entitled to post things indicating

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<v Speaker 1>a historic markers or directional signs or some sort of

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<v Speaker 1>government public education or advocacy campaign. But it doesn't mean

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<v Speaker 1>the rest of you guys can post it on what is,

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<v Speaker 1>after all, our property. It's a little more complicated when

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<v Speaker 1>it comes to sidewalks. I'm sure viewed as traditional public

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<v Speaker 1>for it. But even there, the senses of the government

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<v Speaker 1>is entitled to say, look, uh, there is an event

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<v Speaker 1>that we are holding here, and you can't hold your

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<v Speaker 1>event in the same place we're holding ours. Eugene Court

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<v Speaker 1>challenges to the localation of inaugural protests have been filed

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<v Speaker 1>every four years since two thousand one, with differing results.

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<v Speaker 1>Why isn't there one set of results? Well, I think

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<v Speaker 1>the problem is that, um, the legal rules end up

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<v Speaker 1>being pretty fact sensitive. A lot depends on the particular

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<v Speaker 1>restrictions that are out there. So, for example, the restrictions

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<v Speaker 1>have to be narrowly tailored to the government interest in

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<v Speaker 1>preserving the space for for its purposes and preventing undue crowding,

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<v Speaker 1>preventing security problems, and also have to leave open ample

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<v Speaker 1>alternative channels. So much depends, uh, much depends on exactly

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<v Speaker 1>what what space is prohibited in any particular uh uh

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<v Speaker 1>particular protests or any particular parade route, and what why

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<v Speaker 1>it's prohibited and what spaces allowed. Eugene, I think if

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<v Speaker 1>you ask the average person, is the Augurabal Committee a

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<v Speaker 1>public or a private organization, they would probably guess public um,

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<v Speaker 1>But it is actually, as you said, a private organization. Uh.

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<v Speaker 1>Does that make any any difference in the way this

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<v Speaker 1>case is analyzed. So it would have if it were

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<v Speaker 1>a purely private organization. But given that it is something

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<v Speaker 1>that is essentially fulfilling kind of a government related function. Uh,

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<v Speaker 1>it's the courts of view is that in a sense,

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<v Speaker 1>the speech is kind of government endorsed speech in a

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<v Speaker 1>certain sense. Not necessarily the government agrees with every message

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<v Speaker 1>that might be sent, but that more broadly, it is

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<v Speaker 1>something that that the government. Maybe all governments have parades

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<v Speaker 1>and other such things to celebrate important political events. Uh

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<v Speaker 1>that uh, that are in a sense authorized by the

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<v Speaker 1>government in a special way, even if they are runs

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<v Speaker 1>sometimes by nonprofits. Well so, so, what so when you

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<v Speaker 1>analyze this under the First Amendment, Eugene, you know, to

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<v Speaker 1>what degree do you have to think of this as

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<v Speaker 1>a public forum? Well, it certainly is a public forum,

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<v Speaker 1>and that is an important point. If this were an

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<v Speaker 1>attempt to protest inside a government building, for example, a

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<v Speaker 1>classic example of a non public forum. The government could

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<v Speaker 1>just say nope, we just don't allow any protests period um.

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<v Speaker 1>And we can have our own people speaking in the building.

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<v Speaker 1>We can have messages we favor on the wealth of

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<v Speaker 1>the building, and you guys, the rest of you can't Um,

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<v Speaker 1>I can't speak, Eugene. We're gonna have to Eugene. I'm

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<v Speaker 1>afraid we're gonna have to leave it there. Uh. That

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<v Speaker 1>is it for this edition of Bloomberg Law. We will

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<v Speaker 1>be back tomorrow. Thanks to our technical director Reginald Basil

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<v Speaker 1>and our producer Marks Sinnis Cauchi uh, and thank you

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<v Speaker 1>to Eugene bak U c l A Law School, our

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<v Speaker 1>last guest. You can find more legal news at Bloomberg

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<v Speaker 1>Law dot com and Bloomberg BNA dot com. Coming up

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<v Speaker 1>on Bloomberg Radio, Bloomberg Markets with Carol Masser and Corey Johnson.

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