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Are 'tea party' rallies given preferential treatment by police?

The constitutionality of protest rules was called into question after a tea party rally was allowed full-size flag poles and signs on wooden sticks, which antiwar protesters are often barred from using.

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Robert Richards, a First Amendment scholar at Penn State University, agrees. "Municipalities cannot engage in viewpoint-based discrimination," he says. "There is some latitude that's given police in order to protect public safety, but if it gets down to a determination based on the message, it's a huge issue as far as the First Amendment is concerned."

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Alarm around tea party protests cropped up last year when tea partiers began showing up armed. One much-publicized incident involved a man who carried a high-powered rifle to an anti-Obama rally close to where the president was speaking in Phoenix. The man was not breaking any laws, and the Secret Service said Obama was never in danger.

"If a gun is legal, you can't raise a First Amendment issue if someone is using a gun for symbolic expression," says Mr. Richards. "But if somebody can point to a specific municipality where police and municipal officials allowed somebody from one group to carry a weapon and not somebody from another group, that would raise a constitutional issue."

Kokesh says local rules and even customs decide most of what is allowed and what isn't at a political protest. There was no evidence, for example, that any tea partiers who rallied on the Mall last Thursday were carrying weapons, given Washington's strict gun policies. On the other hand, it wouldn't be unusual to see someone open-carrying a gun at a rally in Farmington, N.M., where they are commonplace in public places.

In Raleigh, public safety officials, who had created the "no-flagpole" rule last September, dropped the rule after the rally drew national attention. Whether that courtesy will ultimately be extended to antiwar or immigration protesters remains to be seen.

Though free speech usually prevails, the question of bias in how protesters are treated by elected officials and police is still an important one, insists Kokesh.

"To say that 'you can have signs with wooden poles, but you we're afraid of so you can't have them' is not acceptable to me," he says. "The fact is, law enforcement's attitudes toward protesters generally reflect the the political inclination [of police], which tends to be pro-government and a little more conservative. So the more uniform the regulations are and the more clearly expressed the standards are, the more fair and equitable [the protests are]," he says.

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