Amherst, The Constitution, and The Fourth of July

Amherst is one of those towns where you'll be tolerant or else. How long to leave the American flags flying on Route 116 after July 4th is a problem. A secular gospel choir performing at high school graduation is a problem. Flying the United Nations flag, dramatizing the Vagina Monologues, or the Extrvaganja, a smoke-in to support the legalization of marijuana, may be issues, but not problems. The to-do over ownership of Amherst's July 4th Parade isn't an issue or a problem. It's a complete mess. Here's Scott Merzbach:

Explicitly stated political views and protests will be allowed during the town's July 4th parade, beginning in 2009. Town Manager Larry Shaffer told the Select Board Wednesday the town will begin running the annual parade next year.

Town Manager Larry Shaffer told the Select Board Wednesday the town will begin running the annual parade next year.

The decision to take over the parade will put an end to a private group's organizing of the event, which began the year after the Sept. 11, 2001, terrorist attacks as a means of honoring public safety and law enforcement personnel. It has also come to recognize veterans and active military personnel.

But the idea of a private parade using public streets has proven controversial. Its organizers have had people removed from the parade for holding signs considered offensive, including people protesting the war in Iraq. [I disagree with the idea that parade organizers are holding a "private" parade. The organizers are Amherst citizens, not outside organizations or Walmart.]

"How is that on the nation's birthday, in Amherst, any American can be denied their constitutional right to freedom of speech on town-owned streets during a celebration ostensibly devoted to that freedom so denied," Shaffer said Wednesday. "I am sorry to report that I have not been able to successfully communicate that irony to the July Fourth Parade Committee."

Shaffer met with organizers Kevin Joy and Larry Kelley, urging them to end their restrictions on free speech in the parade.

They responded with a clarified policy that allows every organization to hold a sign or banner with its name, but prohibits obscene language, political statements or anything not in keeping with the spirit of the parade.

This policy was not sufficient for Shaffer, who said the town parade will be a place for any group to participate.

"There will be no groups unwelcome in this parade," said Shaffer, pointing out that the only exceptions will be for obscenities and hate crimes.

I'm sure there are wheels within wheels here, but the Amherst parade issue is constitutionally interesting. The First Amendment, as you may know, guarantees the freedom to assemble, regardless of the opinions of that particular assembly. It's legal, for example, for neo-Nazis to hold a parade through a Jewish neighborhood. The constitutional question is, does the Town of Amherst have the authority to take the Fourth of July away from a non-governmental assembly and replace it with a governmental assembly?

Consider an extreme case: neo-Nazis decide to hold a parade on Yom Kippur every year. No one wants to see this happen. A town manager tells the neo-Nazi parade organizers that they either allow protesting marchers in their parade or the town will sponsor a religious tolerance parade on Yom Kippur next year. (The neo-Nazis will be allowed to march in the tolerance parade as long as they don't commit a hate crime or scream obscenities). My point is that it would be unconstitutional for a town government to usurp a particular date for a parade because it disagrees with the politics of the organizers.

Holding a parade on July 4th may be not just an issue of freedom to assemble, but freedom of speech. A July 4th parade held on August 3rd, for example, would not carry the significance of July 4th and its connotations of Independence. Usurping July 4th for the Town of Amherst is, in effect, usurping the speech value of the July 4th date.

I don't know all the specifics of this case or the much beyond the ideas behind the First Amendment. I do believe that for all Kelley & Joy's "limitations" on free speech, Schaffer's decision places limits on their First Amendment rights as well as parade sponsors.

Larry Kelley may be what God sends Amherst when he runs out of locusts, but he's successfully sued the town over procedure (ex. open meeting law) on more than one occasion, and although he and I almost certainly disagree on most political matters, I think he's right on this one.

--Mb