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Bay Area Occupy Protests Raise Free Speech Questions

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Protestors set up a tent at a new Occupy Oakland encampment in front of Oakland City Hall.  (Justin Sullivan/Getty Images)

Protestors set up a tent at a new Occupy Oakland encampment in front of Oakland City Hall. (Justin Sullivan/Getty Images)

OAKLAND (KCBS) – City officials in both Oakland and San Francisco, as well as others across the state, have publicly stated that they support the message of the Occupy movement and want to guarantee protesters’ free speech rights.

But would that speech still be free if the message was darker, for example from the Ku Klux Klan or another sinister group?

KCBS Political Analyst Joe Tuman:

KCBS Political Analyst and San Francisco State University Professor of Legal and Political Communications Joe Tuman said there is a legal answer to that question. Tuman was also a candidate for Oakland mayor in the 2010 election.

“We found in studying Supreme Court precedence that you’re not allowed to craft restrictions on people because you object to the content of their speech. So anything that is content-based like that would be strictly illegal and that would apply equally to restriction on the KKK or the American Nazi Party as it would for anyone else,” Tuman said.

“You can’t craft restrictions because you disagree. The Supreme Court from a free speech perspective has said on occasion that there’s certain exceptions to the First Amendment, for example incitement. Those are words that you use in which you’re encouraging other people to do something illegal. Fighting words and obscenity are also exceptions. If you have a group that’s engaging in something that is a recognizable exception, than a city like San Francisco or Oakland could regulate that group based on those exceptions,” Tuman added.

Tuman said that local politicians also should have handled the matter differently.

“In the case that we have here, the original Occupy Wall Street group showed up and what the cities should have done from day one is show up with a permit and say, you can be here, but no camping allowed,” said Tuman. “But also give them a chance to exercise their free speech. Because they didn’t, the violence happened and mixed messages were sent. Now we have a much bigger demonstration going forward.”

Tuman said that cities want to have it both ways in that they want to be sympathetic to these groups of protesters, but also have a responsibility to monitor the public land where the protests are taking place.

(Copyright 2011 by CBS San Francisco. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)

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