Trump Proposes New Rules for Protesting in Capital

Kavanaugh to the Supreme Court. You can either vote for Democrat mob rule, or you can vote for a Republican party that stands proudly the law and order, fairness, freedom, and justice. And now the Trump administration is seeking to curb that so called mob rule with new restrictions on protests and demonstrations in the nation's capital. Joining me is Howard Schweber, a professor at the University of Wisconsin Law School.

Howard the proposed regulation could limit demonstrations on some of the capital's most iconic grounds for protests, including the National Law where Martin Luther King Jr. Develivered his I Have a Dream speech. Tell us about some of the strictest out of the dozen or so limitations being proposed sure, so,

the proposers regulations following the three categories. One is limitations direct limitations on access, and the strictest of these, I think is the outright ban on pedestrian traffic UH in front of the White House UH, with with a small exception of what's being called a pedestrian walkway. UM. That's really extraordinary. It's it's depriving the American public of one of the most traditional sites for protest, for expression, for discussion,

and just for gathering. And it's the most public imaginable place in the nation. UH. And to limit people's access there as a way of avoiding being exposed to protest is really deeply the spiriting UM. The other one that's really dramatic is the idea that permits can be revoked for any violation. And the reason that's so tricky is that there's no as the regulations are proposed, there's no requirement that the violation of the terms of permit occur

by the people who got the permit. In other words, it would be possible to disrupt a protest merely by showing up using an unauthorized bullhorn, and that could be used as a pretext for the part police to shut down the entirety of of the previously permitted protest. There are also possible requirements of fees for permits and reimbursements for costs. How much when does this cross the line

as far as infringing on First Amendment rights? That's an extremely good question, and it's a question with which colleges and universities are wrestling even as we speak. So there have been these famous incidences instances excuse me, UH, students protesting against speakers, for example at Berkeley UH, and these events to create costs that one millions of dollars, and for colleges with tight public budgets, that can be a

real issue. In the case of the National Mall UH, the sidewalk in front of the White House, I think this really gets to be a fundamental question. Yes, it costs money to allow the public to gather a petition for address and protests, as as the Constitution puts it, um are we willing to subsidize these efforts with public funds or will we plead poverty? And is the richest nation on earth unable to afford the costs of maintaining a public space which the people can express themselves at

the most iconic setting in the entire nation. As for the technical question of when asking for fees becomes an infringements on free speech, that's very difficult and I don't think there's any clear answer. Certainly such a requirement would have be imposed equally UH, and certainly would have to be shown to me reasonable. That is, it couldn't be a pretext for charging outrageous fees just to prevent protests from occurring. But where that line would be drawn, that's

something to be fought over in litigation. I think for quite a long time. Yes, now has and of course decades of court cases have set out many of the rules in this area. But has the Roberts Court given an expansive view to the First Amendment in cases of protests. No, And I think it's really worth noting um two things. One, there's been a very expensive view of the First Amendment and free speech and other context it's sometimes referred to

as the weaponization of free speech. That is, free speech arguments have been used UH to justify rulings against unions, UH, to justify rulings to require permitting religious expressions in all kinds of areas, where in the past they would not have been used. When it comes to public protest, the Roberts Court, and for that matter, courts for some time,

have been really quite restrictive. And it's worth pointing out that both Democrats and Republicans, for example, at their national conventions going back twenty years now, have been relying on these very restrictive free speech zones, which are sometimes called free speech cages, where protesters are required to be in an area surrounded by a chain link fence away from

the arena. In other words, there's been a general trend towards federal authorities lamping down on free speech and protest, and that has just fed the i think, the tendency of the Trump administration to want to move in a more authoritarian direction. The a c l U has previously sued the government over attempts to limit protests near the

White House. How has it fared, There have been mixed results. Um. What has never happened is there has never been and perhaps we are coming up on this, there's never been a court ruling that simply force right declared um that a public forum such as the National Mall must make itself available for protests. The idea of a public forum is an area where people traditionally express themselves take a

town square or or a park. UM. One would argue that the National Mall is uniquely the most iconic public forum in the country and therefore should be specially made available. But even the general rules UH say that while time, place and manner restrictions are permissible, there have to be

adequate avenues for expression and protest. But the a CL has never succeeded in getting the Roberts Court UM to really make a clear declaration that protests has to be allowed in ways that are visible and effective UH and and that fit the general public understanding of what that guarantee would require. So the Park Service says that for now it's just looking for the public's views on the matters,

and that common period is over today. What happens next, well, um, now that the comments have been received, the Park Service will consider them. UM, depending how suspicious one is the Park service park services motives. You can wonder how that consideration will take place once a consideration period has been expired, has expired, excuse me? Those regulations will be allowed to go into effect and when when they have taken effect and someone has tried to hold the protests and been

prevented or had a permit revoke. They can then go to court UH. That court challenge will go through the various stages of federal litigation. This can take months or even years, and in that intervening period, these regulations will remain in place and protests will be prevented. So the A c l U or another organization can't sue before the protests. They have to wait for the protest to

be denied. Well, it is possible to seek at injunction UH preventing the implementation of the regulations, but the bar for securing such an injunction is very very high. So, for example, members of the public is recently, we we've all paid a lot of attention to orders preventing the Trump and administration from implementing certain rules by immigration and

excluding people from majority Muslim countries. That's an example where a federal judge was willing to step in and prevent the government from doing something that it wants to do. In this case, I suspect that would be more difficult unless there could be a showing of an immediate issue. Now that issue might turn on the proximity of of midterm elections, or it might be raised by a group seeking a permit for a protest and not getting one.

But as I say, it is difficult to persuade a federal court to issue in junction against an administrative regulation, barring that the a C or whomever is trying to bring this case would have to go to the court system. Thanks so much, Howard. That's Howard Schwebber. He's a professor at the University of Wisconsin Law School. We're live from

the Bloomberg Interactive Broker Studio today. Saudi Arabia is promising to retaliate against any and all sanctions brought against the country and the continuing fallout from journalist Jamal Kashobi's disappearance. Speaking on ABC's This Week, National Economic Council Director Larry Cudlow would not say what the President meant when he

threatened Saudi Arabia with severe punishment. Believe what the President says when he says, we will take very tough action if the allegations of Saudi interference proved to be the case. This morning, on his way to Florida, Trump said he's immediately sending Secretary of State Mike Pompeo to Saudi Arabia to meet with the Saudi King. Pompeo is on his way there, and Trump also suggested that quote rogue killers might be behind the disappearance. Joining me is Adam Smith,

a partner at Gibson Donne. Adam, this situation continues to escalate. There's growing pressure from Congress. Is the Trump administration taking the right steps here? Or should sanctions be imposed immediately? Well, I think immediately might be saying a bit too much. Thanks so much for having me. I think we need to find out exactly what happened, which is what Congress has demanded of the President thus far by sending a

letter to him last week. Uh. An investigation, of course, should be done on unfettered basis, and depending on what happened and what the conclusion is, I think action should then be taken. Absolutely So. Now let's talk about the various steps that are available, various things that the White

House could do to react in Congress. And the White House hasn't specified any the nature of any of the steps it may take, but they range from punishments under disc They range from downgrading diplomatic relations or sanctioning Saudi officials too. You know, withdrawing from an investment conference in React.

So tell us about the different levels. There is a significant range, as you've said, and the president's authority to execute on the international stage is really unlimited even by Congress.

And so you're right, everything from downgrading diplomatic relations which seems unlikely, um which would be rather significant, potentially sanctioning very important actors and even components of the Saudi economy again seems rather unlikely, all the way down to sort of even more sort of minimal sort of statements of disapproval rather than actually is of activity, diplomatic statements, senses of Congress, these sorts of activities, of course Congress would

do rather than the president, and really everything in between. The US, of course sell the Saudi's a lot of arms. There's been a lot of talk recently about that we should stop doing that for various reasons. So that would be a significant issue as well. So you mentioned that senators in both parties invoked the Magnitsky Act in a

letter to President Trump. What makes you think that sanctions will not be imposed With what you said, with the Congress putting pressure on Trump in a bipartisan way, Well, at the end, of the day, it still is the

president's call. So what the Magnitsky Act says is that if a letter like the one that was submitted last Wednesday is received, the president then has a hundred twenty days to do an investigation and to report back to Congress about whether or not one or more of the individuals on this letter is involved in extraditional killings, torture, or other sort of violations of human rights, and then make a determination as to whether or not that person or persons will be sanctioned. But at the end of

the day, it's a presidential call. Hundred twenty days unfortunately a long time from now, and so who knows what the world will look like then, of course, post mid terms and all the rest. So there is pressure the Congress can put on the president, but that pressure is very much limited by the fact that at the end of the day, this is still a presidential call that the Congress has only sort of indirect control over. Congress

has indirect control. But there seems this seems to be a situation that's quickly ratcheting up, and the pressure internationally, the pressure from news organizations. It seems to be a situation that won't hold for days, will it, or do you think it will hold for that long? Well, we don't know. I mean I think you're right. If if it continues at the pace of that has been the

past couple of days, I think you're right. I think if some something we'll need to give, and whether that is sanctions or some other sort of response, I don't know. But if more information is discovered, if there's clear evidence of activity on behalf of the Saudiast with respect to what happened in Istanbul, then I think you're right. I don't think it will hold. And I think that for political reasons, if not because it's the right thing to do,

but certainly for local reasons. Action will if we have to be taken, what that is, I think that will depend on what is discovered. Uh. If you know, I'm not sure these rogue killer ideas that Mr Trump is talking about, whether that will be the reality or whether we'll go all the way up as some people have said, with respect to who in the Saudi government is involved,

and I think that will depend. What's the response will be will depend on what's found, obviously, and if the higher up definding, I think the more the title wave will will sort of be pith artisan, be international, and I then then think Trump will be forced to act in some respect. Will you explain how the Congress was

able to enact sanctions against Russia despite President Trump's reluctance. Yeah, I mean so, the president's authority to impose sanctions is an executive authority unencumbered by Congress unless Congress passes a law to basically compel compel the president. And that's what happened last August. The President did not seem inclined to impose sanctions on Russia for any of the number of

activities they're doing in Syria, election interference, et cetera. And so Congress back in August passed a new law, the Countering America's Adverse Everies through Sanctions Act CATSA, which was done in a bipartisan basis. Both houses of Congress done passed to a level that is beyond the veto proof majority needed, because of course, the President could have just vetoed it unless the veto proof and so it was

enough anger. I think bipartisan basis enough concern in both houses of Congress to result in this law that pushes the president again even Katsa, even though that is a definitely pushing the president to impose sanctions. Even that, I think you would have seen very limited sanctions actually imposed since August under that law, and Congress was quite upset with that because at the end of the day, still is an executive action that the executive needs to execute

on law. And the same thing would be true here. If the President doesn't want to impose sanctions on Saudi Arabia, Congress could pass the law requiring the president to do so, but at the end of the day, the president could potentially slow roll that or decided not to impose sanctions

for any of the number of reasons. Uh. And so the Congress has authority, but that that authority is limited by the fact that at the end of the day of the executive is the one needs to execute that law and has has sort of inherent discretion to decide how to do that, when to do that, and against whom to do that. All right, Thanks so much, Adam. That's Adam Smith. He is a partner at Gibson Done.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud and on bloomberg dot com Slash Podcast. I'm June Brasso. This is Bloomberg. Yeah,