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There has been a marked increase in government suppression of public protests and demonstrations. Certain areas, such as public space near the White House, have been effectively placed off limits to demonstrators. Protestors are put out of sight, down the road, or otherwise away from the object of their protest. The Secret Service has created security zones insulating the President and his entourage from the sights and sounds of opposition marches and demonstrations. And police are using sophisticated tactics, such as surveillance, infiltration, disinformation, and pre-emptive arrests to undermine and frustrate the ability of protestors to conduct their marches and send their message to the larger public. While it may seem that 9/11 and the war on terrorism would make these actions more defensible than they might otherwise be, actually the opposite is true. Most of the demonstrations affected by government suppression tactics are just those troublesome popular risings - opposition to war, globalization economics, and loss of privacy and freedom - that serve to check government overreaching but which may find little outlet in mainstream forms of communication. Yet First Amendment doctrine, in particular the time, place, and manner test, has become too flabby and unstable to reliably counter the government's sophisticated dilution of public dissent. To protect rights of protest and to restore integrity to the right of the people peaceably to assemble and petition for redress of grievances, this symposium paper argues for rejecting the rigid dichotomy between content control and time, place and manner control, recasting of the time, place, and manner test as it relates to protests and demonstrations, and recognition of a First Amendment doctrine of special places.

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GWU Legal Studies Research Paper No. 152; GWU Law School Public Law Research Paper No. 152

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