United States Court of Appeals
For the First Circuit
No. 04-2002
BL(A)CK TEA SOCIETY,
Plaintiff, Appellant,
v.
CITY OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Jonathan Shapiro, Jeff Feuer, Damon Thomas, National Lawyers
Guild (Mass. Chapter), John Reinstein, American Civil Liberties
Union of Mass., Joseph L. Kociubes, Neil G. McGaraghan, and Bingham
McCutchen, LLP on memoranda for appellant.
Merita A. Hopkins, Corporation Counsel, and Mary Jo Harris,
Legal Advisor, Boston Police Department, on memorandum for
appellee.
Michael J. Sullivan, United States Attorney, Anton P. Giedt,
George B. Henderson, and Jennifer C. Boal, Assistant United States
Attorneys, on memorandum for United States of America, amicus
curiae.
July 30, 2004
SELYA, Circuit Judge. This appeal arose in connection
with demonstrations planned for the 2004 Democratic National
Convention (the Convention). The appellant, the Bl(a)ck Tea
Society, seeks review of an order denying its request to modify a
designated demonstration zone (DZ) set aside by municipal
officials. We summarily affirmed the order on July 26, 2004
(coincident with the start of the Convention). This opinion limns
the basis for our ruling.
The facts surrounding this litigation are thoroughly
canvassed in the district court's comprehensive opinion, see
Coalition to Protest the Democratic Nat'l Conv. v. City of Boston,
___ F. Supp. 2d ___, ___ (D. Mass. 2004), and it would serve no
useful purpose to rehearse them in exegetic detail. Suffice it to
say that the Convention was held at the Fleet Center, in Boston,
Massachusetts, on July 26-29, 2004. Security at national political
conventions is always tight and that was especially so this year in
light of heightened sensitivity to security concerns following the
terrorist attacks of September 11, 2001.
Security precautions at the Convention operated on two
different levels. The City established a highly secure hard zone
in the area immediately surrounding the Fleet Center (a zone for
which the United States Secret Service assumed principal
responsibility) and a less secure soft zone extending several
blocks south in the area commonly known as Bullfinch Triangle.
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Only candidates, delegates, staff, press, and other specially
authorized classes of persons were permitted into the hard zone —
and even they had to pass through magnetometers before entering.
By contrast, pedestrian access to and through the soft zone was
generally unrestricted (although vehicles were not allowed to
enter). This dual arrangement left little opportunity for groups
wishing to demonstrate to do so within sight and sound of the
delegates (especially since chartered buses, which loaded and
unloaded within the hard zone, ferried the delegates to and from
the Fleet Center).
In an effort to facilitate demonstrators' access to the
delegates, the City established the DZ on the edge of the hard zone
and allowed demonstrations within it. The DZ itself was far from
a perfect solution. It comprised a heavily secured space,
approximately 90 feet by 300 feet, located for the most part
underneath unused rail tracks. It was surrounded by two rows of
jersey barriers topped with eight-foot chainlink fencing; the
perimeter was further surrounded by a semitransparent liquid
dispersion mesh fabric; and a widely-woven mesh fabric was hung
above the DZ between the rail tracks and the fence. Finally, the
City placed coiled razor wire along the edges of the rail tracks in
the vicinity of the Fleet Center (including the area above the DZ)
in order to inhibit access to the tracks. Although there were
three routes of ingress and egress to and from the DZ, the
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aggregate effect of the security measures was to create an enclosed
space that the appellant likens to a pen.
The appellant filed suit in the United States District
Court for the District of Massachusetts on July 21, 2004, seeking,
inter alia, a preliminary injunction requiring the City to modify
the DZ in certain respects.1 The next day, the district judge
personally inspected the DZ; held a hearing; entertained an ex
parte proffer of evidence from federal authorities concerning
security matters;2 and, ruling ore sponte, denied the requested
injunction. On July 23, he filed the memorandum opinion previously
cited. The Bl(a)ck Tea Society appealed. We have jurisdiction
under 28 U.S.C. § 1292(a)(1).
The district court determines whether to issue a
preliminary injunction by weighing four factors: "(1) the
likelihood of success on the merits; (2) the potential for
irreparable harm if the injunction is denied; (3) the balance of
relevant impositions, i.e., the hardship to the nonmovant if
enjoined as contrasted with the hardship to the movant if no
1
The litigation below also challenged certain other security
measures (e.g., restrictions on marching, etc.) that are not at
issue in this appeal. By the same token, the original lead
plaintiff, the Coalition to Protest the Democratic National
Convention, is not a party here.
2
The district court eventually determined that the information
it had received ex parte was not necessary to its decision and,
thus, did not consider it. See Coalition to Protest, ___ F. Supp.
2d at ___.
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injunction issues; and (4) the effect (if any) of the court's
ruling on the public interest." Charlesbank Equity Fund II v.
Blinds to Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004) (quoting
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15
(1st Cir. 1996)). We review the district court's grant or denial
of a preliminary injunction for abuse of discretion. Id. at 158.
"This is a deferential standard of review, and the deference that
it entails is most appropriate with respect to issues of judgment
and the balancing of conflicting factors." Id. Within this
sphere, the district court's conclusions of law are reviewed de
novo and its findings of fact are reviewed for clear error. New
Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st
Cir. 2002).
Freedom of expression, especially expression of political
views, ranks near the top of the hierarchy of constitutional
rights. See Cohen v. California, 403 U.S. 15, 24 (1971). That
freedom "is designed and intended to remove governmental restraints
from the arena of public discussion, putting the decision as to
what views shall be voiced largely into the hands of each of us, in
the hope that use of such freedom will ultimately produce a more
capable citizenry and more perfect polity and in the belief that no
other approach would comport with the premise of individual dignity
and choice upon which our political system rests." Id.
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The right to freedom of expression is secured principally
by the First Amendment. U.S. Const. amend. I. Despite the
importance of that right, the prophylaxis of the First Amendment is
not without limits. Reasonable restrictions as to the time, place,
and manner of speech in public fora are permissible, provided that
those restrictions "are justified without reference to the content
of the regulated speech, . . . are narrowly tailored to serve a
significant governmental interest, and . . . leave open ample
alternative channels for communication of the information." Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
A regulation is narrowly tailored if "the means chosen
are not substantially broader than necessary to achieve the
government's interest." Id. at 800. To satisfy this benchmark, a
regulation need not be the least restrictive alternative available
to the government. Id. at 798-99. Put another way, the validity
of time, place, or manner regulations is not subject to "'a judge's
agreement with the responsible decisionmaker concerning the most
appropriate method for promoting significant government interests'
or the degree to which those interests should be promoted." Id. at
800 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985)).
An inquiry into the validity of time-place-manner
regulations generally commands what we have termed "intermediate
scrutiny." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731,
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736 (1st Cir. 1995). In this case, however, the appellant
endeavors to ratchet up this level of scrutiny by characterizing
the security measures (particularly the total prohibition of
demonstrations in the hard zone) as a prior restraint on speech.
We reject this approach: here, the City has not sought to prevent
speech, but, rather, to regulate the place and manner of its
expression. The Supreme Court has explicitly rejected attempts to
analyze security-based time-place-manner restrictions as prior
restraints, see, e.g., Hill v. Colorado, 530 U.S. 703, 733-34
(2000); Schenk v. Pro-Choice Network, 519 U.S. 357, 374 n.6 (1997);
Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994),
and those cases are controlling here. If content-neutral
prohibitions on speech at certain places were deemed prior
restraints, the intermediate standard of review prescribed in the
time-place-manner jurisprudence would be eviscerated.
Having settled upon the appropriate level of scrutiny, we
move the inquiry forward. The answers to some issues are
indisputable: the challenged security precautions are plainly
content-neutral and there can be no doubting the substantial
government interest in the maintenance of security at political
conventions. What remains, therefore, is whether the City's array
of security precautions were narrowly tailored and whether those
precautions left ample alternative avenues of communication.
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We deem it appropriate to start a narrow tailoring
analysis by examining the speech-related burdens that the
challenged regulation imposes. It cannot be gainsaid that the
security measures attendant to the Convention dramatically limited
the possibilities for communicative intercourse between the
demonstrators and the delegates. The measures allowed no
opportunity for physical interaction (such as the distribution of
leaflets) and severely curtailed any chance for one-on-one
conversation. Visual communication using signs or other media was
not prevented but was hampered to some extent by the cramped space
and the mesh screening. And while the direct limits on aural
communication seem minor, even this form of interaction may have
been less effective because of the restrictions on other modes of
expression. In sum, the challenged regulation imposed a
substantial burden on free expression.
We turn next to the City's goal, mindful that the
government's judgment as to the best means for achieving its
legitimate objectives deserves considerable respect. Rock Against
Racism, 491 U.S. at 798-99. Here, the City's overall goal was to
maintain security at the Convention. But security simpliciter is
too broad a rubric to be useful in this analysis. Security is not
a talisman that the government may invoke to justify any burden on
speech (no matter how oppressive). Thus, the question of narrow
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tailoring must be decided against the backdrop of the harms that a
particular set of security measures are designed to forfend.
The City claims that the risk of harm was substantial.
It designed the elaborate security measures here at issue in light
of recent past experience with large demonstrations, including
those at the 2000 Democratic National Convention in Los Angeles.
The double ranks of fencing were meant to deter attempts to break
through the fence; the liquid dispersal mesh was intended to
protect the delegates from being sprayed with liquids; and the
overhead netting was added to prevent demonstrators from hurling
projectiles. Conduct of this type admittedly has occurred at a
number of recent protests.
The appellant points out, correctly, that there is no
evidence in the record that the City had information indicating
that demonstrators intended to use such tactics at the Convention.3
Building on this foundation, the appellant maintains that the City
may not implement security requirements that substantially burden
speech on the basis of unrelated past experiences. It further
argues that most protesters do not engage in such conduct, and that
the First Amendment rights of the majority of protesters should not
3
That statement is true, so long as one ignores the ex parte
presentation by the federal government. See supra note 2. Like
the district court, we are content, for purposes of this case, to
leave that evidence to one side. The difficult issues raised by
the use of such proffers will have to be considered in future
cases.
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be curtailed because of the potential for unlawful actions by a
rowdy minority. In the absence of event-specific threat evidence,
the appellant says, the City should have been limited to arresting
miscreants and punishing unlawful conduct after it occurred.
We do not believe a per se rule barring the government
from using past experience to plan for future events is consistent
with the approach adopted in the Court's time-place-manner
jurisprudence. See Hill, 530 U.S. at 728-29 (relying in part on
past experience to find time-place-manner restrictions narrowly
tailored); Rock Against Racism, 491 U.S. at 796-97 (upholding
restrictions enacted on the basis of earlier experiences with noise
pollution in Central Park). The question is not whether the
government may make use of past experience — it most assuredly can
— but the degree to which inferences drawn from past experience are
plausible. While a government agency charged with public safety
responsibilities ought not turn a blind eye to past experience, it
likewise ought not impose harsh burdens on the basis of isolated
past events. And in striking this balance, trial courts should
remember that heavier burdens on speech must, in general, be
justified by more cogent evidentiary predicates.
On this hastily assembled record, the quantum of "threat"
evidence was sufficient to allow the trier to weigh it in the
balance. For now, we do not purpose to determine how that factor
should be weighed either in future cases or in connection with
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better-developed factual proffers. We instead assess only whether
the district court's balance of this and other factors was so
unreasonable as to constitute an abuse of discretion. We conclude
that it did not, and, thus, we uphold the district court's
determination that the security measures undertaken by the City,
though extreme, were nonetheless narrowly tailored.
Having left intact the district court's conclusions anent
narrow tailoring, we briefly address the availability of
alternative avenues for expression. The district court
perspicaciously noted that many other opportunities for
demonstrations existed in the vicinity of the Fleet Center and
throughout Boston. The City allowed informal demonstrations within
the soft zone without a permit so long as those demonstrations
involved fewer than 20 people (and allowed up to 50 people with a
permit). Several other public spaces throughout Boston remained
available for demonstrations, subject to existing regulations and
content-neutral permitting requirements.
The appellant's chief rejoinder is that these
alternatives were not sufficient because none of them were within
sight and sound of the delegates assembled at the Fleet Center. We
disagree with that premise: the DZ did provide an opportunity for
expression within sight and sound of the delegates, albeit an
imperfect one. There are, moreover, two other pertinent
considerations. First, although the opportunity to interact
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directly with the body of delegates by, say, moving among them and
distributing literature, would doubtless have facilitated the
demonstrators' ability to reach their intended audience, there is
no constitutional requirement that demonstrators be granted that
sort of particularized access. Second, we think that the
appellant's argument greatly underestimates the nature of modern
communications. At a high-profile event, such as the Convention,
messages expressed beyond the first-hand sight and sound of the
delegates nonetheless have a propensity to reach the delegates
through television, radio, the press, the internet, and other
outlets. On this record, then, we cannot say that the district
court erred in concluding that viable alternative means existed to
enable protesters to communicate their messages to the delegates.
Let us be perfectly clear: this is a close and difficult
case. The district court, however, dealt with matters at first
hand and concluded that the appellant had not shown a likelihood of
success on the merits. See Coalition to Protest, ___ F. Supp. 2d
at ___. On this record and at this preliminary litigation stage,
we find that conclusion reasonable.
We have frequently said that likelihood of success is an
essential prerequisite for the issuance of a preliminary
injunction. See New Comm Wireless Servs., 287 F.3d at 9 ("The sine
qua non of this four-part inquiry is likelihood of success on the
merits: if the moving party cannot demonstrate that he is likely
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to succeed in his quest, the remaining factors become matters of
idle curiosity."); Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir.
1993) (similar). In the interests of completeness, however, we
briefly mention the remaining three parts of the preliminary
injunction calculus.
A burden on protected speech always causes some degree of
irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373-74 (1976).
Here, however, the safety, security, and logistical concerns voiced
by the City were real, and the district court was correct in giving
those concerns due consideration. Thus, the balance of harms is
inconclusive in this case. Similarly, the public interest cuts
both ways. On the one hand, freedom of expression, especially
freedom of political expression, is vital to the health of our
democracy. On the other hand, making public safety a reality and
ensuring that important political events are able to proceed
normally are also valuable. Moreover, a determination of the
public interest necessarily encompasses the practical effects of
granting or denying preliminary injunctive relief. Here, the
district court was constrained by the physical limitations of the
Fleet Center venue4 and by the timing of the suit (which, despite
4
The district court supportably found that these physical
constraints made it impossible to either relocate or substantially
enlarge the DZ. Coalition to Protest, ___ F. Supp. 2d at ___. The
DZ could not be expanded eastward into the loading area for buses
without jeopardizing the ability to move people and vehicles safely
and efficiently. Id. at ___. Finally, there was no practical way
either to remove the overhead rail tracks or to relocate the DZ
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considerable advance notice of the planned security measures, was
brought less than a week before the Convention was scheduled to
open).
We mention these constraints because it is readily
evident that they sharply limited the remedial options available to
the district court. Considering these factors in the aggregate, we
find the equities closely matched, and we come away sharing the
district court's concern with the impracticability of eleventh-hour
injunctive relief. See Coalition to Protest, ___ F. Supp. 2d at
___.
We need go no further. With the Convention looming and
with few options at its disposal, we think the district court's
resolution of the preliminary injunction request was fully
supportable. The court did yeoman's work in holding a prompt
hearing, mastering the complexity of the issues and the physical
shortcomings of the site, deciding the motion in a timeous fashion,
and writing a thoughtful rescript that explained its findings and
its rationale. Dealing with the record as it stands, the temporal
constraints under which the district court labored, and the
deferential standard of review, we have no principled choice but to
uphold the challenged order.5
from beneath the tracks. Id. at ___.
5
We are not faced with the question of whether the same result
would be supportable in less tumultuous times or on a better-
developed record, cf. Cohen v. Brown Univ., 991 F.2d 888, 902 (1st
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Affirmed.
— Concurring Opinion Follows —
Cir. 1993) (explaining that "a district court's conclusions at the
preliminary injunction stage are only attempts to predict probable
outcomes"), and, therefore, we express no view on these matters.
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LIPEZ, Circuit Judge, concurring. I concur fully with
the thoughtful opinion of Judge Selya. I write separately to
emphasize some important lessons that I believe should be taken
from this case.
1. Timing
Time constraints shadowed every aspect of this case. In the
future, if the representatives of demonstrators ask the courts to
modify security measures developed over many months of planning for
an event of this magnitude, they should come to court when there is
enough time for the courts to assess fully the impact that
modifications will have on the security concerns advanced.
Inevitably, the absence of time becomes an important element in
determining whether a given time-place-manner restriction is
narrowly tailored to serve a government interest in maintaining
security. See United for Peace & Justice v. City of New York, 323
F.3d 175, 178 (2d Cir. 2003) (noting that "short notice [and] lack
of detail . . . are always relevant considerations" in a First
Amendment narrow tailoring analysis).
According to an affidavit in the record, discussions on
arrangements for demonstrations began in July 2003 between the city
and interested parties, including the American Civil Liberties
Union and the National Lawyers Guild, which are counsel for the
appellant in this action. The city undertook to provide a
designated demonstration zone within sight and sound of the DNC
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delegates. The parties agreed that the area that had been set
aside for the delegates' buses would be modified to accommodate the
placement of the demonstration zone. Subsequently, there may have
been misunderstandings about agreements that had been reached.
Perhaps there were unjustified reliances on verbal representations.
The record does not permit any judgment on the history of
negotiations. However, for an event of this magnitude, taking
place at a time of heightened national security, there is an
inescapable need for firm, documented understandings well in
advance of the event about arrangements to accommodate
demonstrations. If the parties cannot reach satisfactory
agreements, there must be adequate time to seek recourse in the
courts. Adequate time means months or at least weeks to address
the issues. It does not mean five days before the event begins.
2. Choice of Site
The district court has described in detail the physical
limitations of the Boston site of the Democratic National
Convention, noting that the DZ "is the only available location
providing a direct interface between demonstrators and the area
where delegates [would] enter and leave the FleetCenter."6 These
site limitations reduced dramatically the options available for
accommodating the First Amendment rights of protesters and the
6
These limitations assume the presence of the "hard zone,"
which is not at issue in this appeal.
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security concerns of the event. The record does not disclose the
attention given to the rights of demonstrators in the selection of
the FleetCenter for the convention. In the future, however, some
of the problems that bedeviled the demonstrators and the planners
here, and the court in considering the possibility of relief, might
be ameliorated if the venue chosen for the gathering allowed a
variety of solutions to the competing concerns of the parties.
Once a site is chosen, geography can dominate the legal analysis.
3. Event Specific Intelligence
The district court justified the security measures at issue
here on the basis of "past experience at comparable events,
including the 2000 DNC in Los Angeles." The district court added:
We have come to a point where it may be anticipated, at
this and similar national security events, that some
significant portion of the demonstrators, among those who
have the closest proximity to delegates or participants,
consider assault, even battery, part of the arsenal of
expression. And as a consequence, those responsible for
event safety must plan for violence. In fact, the chance
of confrontation with the security measures themselves is
viewed by some as a further opportunity for expression.
These references by the district court to experiences at comparable
events, and its statement that there was reason to fear similar
violence from some of the demonstrators at this convention, drew
the particular ire of the appellant who challenged "the imposition
of Draconian restrictions on the exercise of First Amendment rights
on the basis of anecdotal information of disruptions and civil
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disobedience that have occurred at other places, at other times,
and under other circumstances."
It is true that unfounded speculation about potential violence
cannot justify an insufficiently tailored restriction on
expression. See, e.g., Bay Area Peace Navy v. United States, 914
F.2d 1224, 1228 (9th Cir. 1990) (seventy-five yard security zone
separating demonstrators from naval parade was not narrowly
tailored to serve governmental interest in preventing terrorism
when the asserted threat was speculative and unconnected to
incidents in the San Francisco Bay area or the United States). On
the other hand, as Judge Selya notes, law enforcement officials may
appropriately draw upon experiences of other cities or entities
that have hosted comparable events when assessing the type of
security measures necessary to police an upcoming event. See
Grider v. Abramson, 180 F.3d 739, 743-44 (6th Cir. 1999)
(concluding that town's security plan developed in anticipation of
KKK rally and counter-rally by opposing groups, in consultation
with "the distilled essence of [other municipalities'] collective
advice," was narrowly tailored to the government's interest in
protecting the safety of both groups and the public). The reality
that some demonstrators at the 2000 DNC and other recent large,
political events have pushed over fences, squirted bleach and urine
at delegates or attendees, and thrown objects over barricades, was
clearly relevant to the safety risk posed to delegates and others
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at the 2004 DNC. At the same time, the absence of specific
information in the record about risks of violence specific to this
event remains troubling in light of the particularly stringent
restrictions on expression that were imposed. Cf. United for Peace
and Justice v. City of New York, 243 F. Supp. 2d 19, 25 (S.D.N.Y.)
(relying on evidence that United Nations building had been the
target of two recent security incidents in upholding denial of
permit to march in front of United Nations building as narrowly
tailored restriction of First Amendment activity), aff'd 323 F.3d
175 (2d Cir. 2003).
The district court recognized the importance of event specific
intelligence. As the court disclosed in its initial bench ruling,
and as it confirmed in its written decision, the court
inquired of both the City and the United States whether
they had any specific intelligence concerning security
threats during the DNC. The United States indicated that
it did, and would be willing to provide that information
to me ex parte and in camera, but was unwilling to
provide the information in the presence of plaintiffs'
counsel, even with a protective order, because of concern
regarding the potential difficulties for law enforcement
and various investigations.
As the district court further explained, it met with
representatives of the United States, received information that is
reflected in the court reporter's notes and then, in light of the
objections posed by the appellant to the consideration of that
information, stated that it would not consider the information
received during the ex parte meeting in its decision on a request
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for a preliminary injunction. Yet the district court did say in
its written decision: "I should add, for purposes of completeness,
that nothing in the information received suggested that the
disposition of the Bl(a)ck Tea plaintiffs' motion was improvident."
The stenographer's notes of that ex parte meeting were placed under
seal and were, in the words of the district court, "available to
prepare a transcript should judicial officers need to review them
in connection with any appeal." We have not sought such review.
Neither party challenged the district court's participation in
the ex parte meeting, and I do not question the court's statement
that the information it received from the United States played no
role in its decision. I do understand the district court's
"improvident" observation to mean that the information it reviewed
ex parte confirmed, in its mind, the rightness of the decision it
made independently of that information. This distinction captures
the difficulties involved in trying to fashion a workable procedure
under impossible time constraints that would allow the court to
receive the event specific information it ideally should have while
both protecting the confidentiality of that information and
allowing the appellant to challenge it in some fashion.
I do not presently have an answer to this dilemma. I only
know that the dilemma is one of considerable import. We have
recognized the general proposition that "[o]ur system of justice
does not encompass ex parte determinations on the merits of cases
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in civil litigation." Assoc. for Reduction of Violence v. Hall,
734 F.2d 63, 67 (1st Cir. 1984). Yet some precedents from other
circuits suggest that ex parte determinations may be allowable
"when the submissions involve compelling national security concerns
or the statute granting the cause of action specifically provides
for in camera resolution of the dispute." Vining v. Runyon, 99
F.3d 1056, 1057 (11th Cir. 1996); see also Molerio v. FBI, 749 F.2d
815, 825 (D.C. Cir. 1984). Although we have not had occasion to
consider whether compelling national security concerns may in
exceptional circumstances justify the ex parte consideration of
privileged information, this case might have presented an
opportunity to address the issue. As the district court noted, the
DNC was designated by the President as a National Special Security
Event, with the Secret Service designated as the lead federal
agency in the design, planning, and implementation of security
measures. However, so far as I can tell, there was no attempt by
defendant to establish the factual predicates for this national
security exception. Thus, the record is devoid of intelligence
specific to this event.
While fully acknowledging the difficulty of the issues
involved, I think that void is unfortunate. It should not be the
rule in these kinds of cases. With more time to prepare for these
cases, and with some creative thought given to procedures that
might allow the fair consideration of such event specific
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intelligence, there could be less reliance in the future on the
inferences drawn from prior events.
4. Post-9/11 Environment
At the outset of its written decision the district court
placed the controversy before it in context:
The DNC will be the first national political convention
to be held following the September 11, 2001 terrorist
attacks on New York's World Trade Center that were
launched from Boston's Logan Airport. It has been
designated by the President as a National Special
Security Event, and, in light of recent experience with
such events, the Secret Service and the Boston Police
Department have developed extraordinarily stringent
security measures in connection with it.
Inevitably, the events of 9/11 and the constant reminders in the
popular media of security alerts color perceptions of the risks
around us, including the perceptions of judges. The risks of
violence and the dire consequences of that violence seem more
probable and more substantial than they were before 9/11. When
judges are asked to assess these risks in the First Amendment
balance, we must candidly acknowledge that they may weigh more than
they once did. See United for Peace and, 243 F. Supp. 2d at 29
(recognizing that "heightened security concerns due to September
11th are an additional element of the City's overarching concern
that it [could not] safely protect the public" if a proposed march
past the United Nations were to take place). When the district
court commented that there are aspects of this case that are
"irretrievably sad," the court surely had this new reality in mind.
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I wish to be clear. I am not suggesting that this new reality
makes the First Amendment rights of the demonstrators any less
important or the vigilance that the courts must have for those
rights any less imperative. But I am suggesting that the always
difficult balancing between those First Amendment rights and the
demands of security has become even more difficult.
Thus I return to the point where I began – the inescapable
need for judges and litigants to have adequate time to resolve
these difficult First Amendment/security issues. Although the
district court did a superb job under difficult circumstances of
analyzing the competing interests at stake and offering its best
judgment as to how those interests must be addressed, the press of
time inescapably constrained its ability to grant any of the relief
sought by the appellant. For us, even further removed from the
scene and from the facts, and with the Convention already under
way, the constraints were even greater.
There is good reason for the district court's lament that "the
design of the DZ is an offense to the spirit of the First
Amendment." In the future, with more time for court intervention
when court intervention is needed, with the choice of more flexible
sites by event planners, and with procedures in place for giving
the court the event specific information it should have, that
spirit, hopefully, will not be offended again.
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