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Don't fence them in
by Heidi Kyser | posted April 18, 2014
Before the press published photos of armed militiamen – who’d come from all over the country to stand with embattled Bunkerville, Nev., rancher Cliven Bundy – pointing their guns at BLM officers; before the BLM capitulated and gave back the cattle it had seized from Bundy as punishment for his not paying grazing fees; before Senator Harry Reid called the militiamen domestic terrorists and urged the BLM not to drop the matter … Before all that, there was the First Amendment Area controversy. Remember that? The BLM’s putting up impromptu fences and designating protest areas was the first reason critics seized on to chastise the BLM for mishandling the situation. Governor Brian Sandoval himself called on the bureau to dismantle the offensive pens.
First Amendment areas – originally called “free speech zones” when first implemented in the peace protests of the 1960s and’70s -- are used to for protests all over the world – even right here in Nevada, just a couple hours’ drive north of Bunkerville, at the former nuclear test site. Anti-nuke demonstrations there were once so regular that the Department of Energy installed permanent fencing, and would also set up impromptu restrooms and water stands when groups would arrive, to accommodate them.
Why do First Amendment areas seem to make some people mad and not others? We asked UNLV political science professor Michael Bowers, who specializes in civil rights and liberties, to explain.
Have First Amendment Areas always been as hotly contested as today?
I do not recall them being quite so controversial as they are now. Perhaps that is because they were used against groups that were unpopular, such as hippies, and yuppies and middle-aged folks didn't much care. Now the zones are being expanded to include others.
What’s the government’s argument for using them?
The argument is one about keeping the public safe. Sometimes, it is about keeping a VIP such as the president safe by separating him from protesters.
How are they supposed to promote safety?
The idea is to keep the VIP and the protesters physically separated in order to avoid someone taking a shot or engaging in other potentially injurious behavior.
Intuitively, it does seem obvious both that free speech should be allowed anywhere and that the government has a duty to keep the public safe in potentially explosive confrontations (such as the one between Bundy’s supporters and the BLM). Are these interests inherently at odds?
Public safety and the First Amendment aren't inherently at odds. Those who assemble and express their opinions in peaceful ways are not a danger to public safety. It's when they become violent or engage in illegal behavior (which is not protected by the First Amendment) that public safety is threatened.
Would something in the Bunkerville situation make the idea of these areas particularly inflammatory?
[Bundy supporters’] opposition to the federal government would certainly inform their opinion of anything it did in a negative way. This is just one more thing it did.
If not in a First Amendment area, then what is the right way to protect the public?
The way to do it right is obviously to have sufficient protection so that those on both sides are allowed to express their opinions. That is more difficult in some situations than others, of course.
Get more insight into Nevada's history, and how it shapes its politics, in Bowers' book The Sagebrush State.
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