Permitting protest in America797
International Journal of Urban and Regional Research
2005 The Authors.Journal Compilation © 2005 Joint Editors and Blackwell Publishing Ltd.
activists and many newspapers around the country cried foul. But even though elsewhereon its pages it had reported that in testimony the police had admitted that they had noreason to expect violence at the parade and that there was no evidence suggesting therewas a heightened risk of terrorism associated with the protest (Haberman, 2003a;2003b), the
New York Times
argued in an editorial that ‘given the number of peopleexpected to attend, the short notice the city had to prepare for the event and the UnitedNations’ history as a terrorism target, the city seems to be within its rights underthe First Amendment’ (
New York Times
, 14 February 2003). Yet, the
suggested,‘the way this demonstration is being handled should not become the standard for thefuture . . . It is crucial . . . that this not become the norm’ (
).The problem with the
position was that this way of handling protest alreadywas the norm. The New York City government admitted that it had refused
permitsfor protest marches for several months, and that it had become city policy to only allowstationary rallies (Haberman, 2003a). And, more generally, limiting where and howprotesters can meet through protest permits that spell out the exact place, time andmanner of allowable dissent had already long been established as ‘the norm’ across thecountry. So too had the construction of ‘protest pens’ (or fences to keep protesters inparticular areas and away from others) become a key strategy for policing dissentingpolitical speech. What was remarkable about New York’s denial of a march permit wasnot,
, the precedent it set, but rather how much precedent there was for it.This article concerns that precedent, a precedent that over the past 60 years hasconstructed a particular landscape of dissent in the United States (Mitchell, 2003). Whilethe landscape is highly developed in the US, it is not unique to it (see Della Porta andReiter, 1998; McPhail
, 1998). Nor are the tools that have been used to constructit, including laws and bureaucratic rules, legal cases and changing police practices. Thetools are used not to silence dissent outright, but rather to regulate it in such a way thatdissent can be fully incorporated into, and become part of, the liberal democratic state(Marx, 1998). That is, the protest permit system in America has evolved as a means toactively
, if not directly control, political dissent. And yet, even as permit systemsare becoming fully regularized and fully routinized, debates over their legitimacyindicate that geographically based permit systems might be inadequate to the task of incorporating dissent. As we will argue, while recent protest shows just how importantgeography — in the sense of the jurisdictional fragmentation of regulation and the sitesand relative location of events of different types and sizes — is to regulating,incorporating and policing dissent, it also exposes just how blunt and how fragile a toolit is.While much could be said about the legal geography of dissent, we focus inparticular on Washington, DC in order to ground our arguments. There are two relatedreasons for this. First, as the seat of national government, Washington is the ‘protestcapital’ of the US. It has perhaps the most advanced, and the most institutionalized,system of protest permitting. Thus it provides a good case study of the intricate waysprotest has been regularized in America — and, as we will show, of how that processmay have reached its limits. But, secondly, Washington is also on the leading edge of trends in the policing of protest. As the sociologists of protest and policing McPhail
. (1998: 49–50) argue:
[the Washington] permit system is one aspect of a public order management system . . . thathas since been replicated, with some modiﬁcations, in many state capitals, large cities, anduniversity campuses across the United States. Signiﬁcant components of this system recentlyhave been adopted in South Africa and in Belarus and facsimiles are present within the protestpolicing systems of England, Germany, France, Switzerland, and Spain.
(1998: 49) define a public order management system as ‘the organizations chargedwith managing public disorder problems, their policies and programs, their individual and collectivepolicing actions, and their enabling technologies’.