"Tea party" activists successfully lobbied security officials in Raleigh, N.C., last Thursday to reverse a ban on carrying full-sized flagpoles and signs at a tax day rally. Antiwar protesters, however, argue that they're often not afforded such luxuries.
Do tea party activists get preferential treatment from law enforcement officials? They have been able to carry guns to anti-Obama rallies, critics note, suggesting that there is a double standard.
Parade permitting rules vary widely from town to town and city to city, with the Supreme Court giving law enforcement broad authority to uphold public safety.
To be sure, permitting rules and police preparedness are often developed based on past behavior at various kinds of protests. Many go back to the 1960s and 1970s when violent rallies erupted over the Vietnam War. Such protests sprung up again during the presidency of George W. Bush, when protesters clashed with police in New York City and elsewhere during large-scale demonstrations against the Middle East wars. With tea party rallies so far proving more orderly, police have given them more latitude.
For the most part, application of those rules doesn't infringe on the constitutional right to free speech, says Iraq War veteran Adam Kokesh, who has organized both antiwar protests and tea party protests and is now running for Congress in New Mexico's Third district.
That doesn't mean the complaint about different treatment for different ralliers is off-base, however. The more loosely such permitting restrictions are written, the more bias can – and does – seep into the approval process, says Mr. Kokesh.
"Certainly antiwar protests are on the whole more rambunctious than tea party rallies, so there is an appropriate role for law enforcement to exercise a certain amount of discretion in how they approach protesters," says Kokesh. "But there are times when regulation or individual action by law enforcement crosses the line and there's a blatant show of favoritism."
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."
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.