FBI Policy on First Amendment Activity
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FBI ACADEMY ADVICE ON CONSTITUTIONAL LAW
In November of 1994, Daniel L. Schofield, S.J.D., Unit Chief of the Legal Instruction at the FBI Academy, gave his reading of the way police officers and government agencies should view the First Amendment to the Constitution of the United States. In the following, we will look at the Second Amendment in light of his advice on the First.
DLS - "The Supreme Court has indicated that in the context of protests, parades and picketing in such public places as streets and parks, ...citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment."
Armed&Safe - If applied to the Second Amendment, this would mean that bearing arms in even an "outrageous" manner in public places must be tolerated by citizens.
DLS - "Three general first amendment principles guide departmental decision making in controlling public protest. First, political speech in traditional public forums, such as streets and parks, is afforded a very high level of first amendment protection, and blanket prohibitions of such speech are generally unconstitutional."
A&S - Applied to the Second Amendment, this principle would not allow blanket prohibition of open possession of arms in public places.
DLS - "Second, reasonable time, place, and manner restrictions on such speech are permissible if they are content-neutral, narrowly tailored to serve substantial government interests, and leave ample ways for the speech to occur.
A&S - Time, place and manner restrictions on the carrying of arms would have to be neutral as to which arms were to be restricted, narrowly tailored to serve substantial government interests and leave ample ways for all to carry arms.
DLS - "Third, speech or expressive conduct can be restricted because of its relationship to unlawful conduct, such as disorderly conduct or trespass."
A&S - The carry of arms can be declared illegal when it is in conjunction with the breaking of other laws.
DLS - "The first amendment permits the government to impose a permit requirement for those wishing to engage in expressive activity on public property, such as streets, sidewalks, and parks. Any such permit scheme controlling the time, place, and manner of speech must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. The Supreme Court has held that any permit regulation that allows arbitrary application is '...inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view."
A&S - Thus, permits to carry would be allowed, so long as they could not be arbitrarily denied and did not place unreasonable restrictions on the time, place, or manner of carry.
DLS - "The Supreme Court has ruled unconstitutional permit schemes that vest government decision-makers with uncontrolled discretion in deciding whether to issue a particular permit."
A&S - This would make California's concealed carry permit scheme, as practiced today, unconstitutional.
DLS - "The Supreme Court has interpreted the first amendment as creating a '...profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.' Law enforcement often has the responsibility of balancing the legitimate need to maintain public order with the important interest in protecting first amendment rights. Because the legality of the various enforcement options discussed in this article depends on a complex and fact-specific analysis, law enforcement decision makers should obtain competent legal review of any proposed restriction on expressive activity, In that regard, a particular group's past violent or disruptive conduct should be carefully documented because it is relevant to this analysis. Finally, it is recommended that officers receive legal training on the basic principles of first amendment law before being assigned the difficult task of controlling public protest."
A&S - There should be a "profound national commitment" to the principle that the right to keep and bear arms should be uninhibited, robust and wide-open. While it is necessary that the police maintain public order and guard against criminal activity, they have, at the same time, an important interest in protecting your exercise of your Second Amendment rights.
