Buttegieg Campaign Violates Free Speech Right of #Medicare4All Pamphleteer

Technically, Keene State College, a public college, violated the 1st amendment right of Norman Solomon who was passing out a pamphlet titled "“Medicare for All. Not Healthcare Profiteering for the Few.” But a Buttegieg staffer called campus police to arrest Mr. Solomon after Buttegieg spoke at an auditorium at Keene State.

But minutes after Pete Buttigieg finished speaking in an auditorium at Keene State College in New Hampshire on Saturday, a Pete for America official confronted me outside the building while I was handing out a flier with the headline “Medicare for All. Not Healthcare Profiteering for the Few.”

“You can’t pass that out,” the man told me. I did a double take, glancing at the small “Pete” metal badge on his lapel while being told that he spoke on behalf of the Buttigieg campaign. [...]

When I continued to pass out the flier, the Buttigieg campaign official (who repeatedly refused to give his name) disappeared and then quickly returned with a campus policeman, who told me to stop distributing the leaflet. Two Keene city police soon arrived.

The Buttigieg official stood a few feet behind them as the police officers threatened me with arrest for trespassing. Ordered to get off the campus within minutes or be arrested, I was handed an official written order (“Criminal Trespass Notice”) not to set foot on “Keene State College entire campus” for a year.

I understand why the staffer for Mayor Pete's campaign called the cops. The pamphlet directly accused both Biden and Buttegieg of distorting and denouncing Medicare for all: Here's what the pamphlet said about Buttegieg's position on healthcare:

Buttigieg is using the slogan “Medicare for all who want it,” which might sound good. But, as New Hampshire State Representative Mark King points out, “the idea of a public option such as ‘Medicare for all who want it’ continues to benefit the private insurance companies that can pick and choose who they cover. It would set the public option up for failure – and unfairly burden taxpayers – by inequitably shouldering the cost for those remaining, those most in need of healthcare.”

Representative King adds: “This concept that a public option plan can deliver just, universal health coverage is disingenuous. In sharp contrast, the core tenet making Medicare for All viable is that it includes all of us. This gives true Medicare for All bargaining power to keep costs down, while distributing the risk across a massive population pool.”

Sadly, Buttigieg is claiming that Medicare for All would dump people off of health coverage and deprive them of “choice.” Those are insurance-industry talking points. He is deliberately confusing the current “choice” of predatory for-profit insurance plans with the genuine full choice of healthcare providers that enhanced Medicare for everyone would offer.

However, Buttegieg's campaign had no justification to call the police on Solomon, and Keene State's police were wrong to stop Solomon from passing out his pamphlet and forcing him off the campus. A similar case in California, where a public college that prevented a student passing out copies of the US Constitution in Spanish, was sued by the student. The US District Court for the Central District of California in Shaw.v Burke, et alia, ruled the college's policies violated the student's first amendment right to free expression. Some pertinent excerpts:

“The college classroom with its surrounding environs is peculiarly ‘the marketplace of ideas.’” Healy v. James, 408 U.S. 169, 180 (1972). However, simply because the government owns property does not automatically mean that any individual may use it to express his or her First Amendment rights. Grayned v. City of Rockford, 408 U.S. 104, 117–118 (1972) (“Nowhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for…unlimited expressive purposes.”). [...]

... Instead, in evaluating whether an area is a traditional public forum, courts evaluate:

1) the actual use and purposes of the property, particularly status as a public thoroughfare and availability of free public access to the area; 2) the area’s physical characteristics, including its location and the existence of clear boundaries delimiting the area; and 3) traditional or historic use of both the property in question and other similar properties.

Id. at 1100. The Court must also keep in mind that “[a] modern university contains a variety of fora.” Bowman v. White, 444 F.3d 967, 976 (8th Cir. 2006).

On Pierce’s campus, there are “open areas and sidewalks beyond the Free Speech Area where student speech, expressive activity, and distribution of literature would not interfere with or disturb access to college building or sidewalks….” (Compl. ¶ 54.) At the time administrators stopped Shaw from distributing Spanish-language copies of the U.S. Constitution, he was alongside a “large thoroughfare called ‘the Mall’” and was not “disrupting campus operations or interfering with foot traffic.” (Id. ¶¶ 57–58.) These facts tend to establish the open areas of Pierce’s campus are a public forum.

Colleges and universities have argued they have the right to limit an individual's free expression rights, but the Supreme Court held such limitations bear a "heavy presumption of invalidity." Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992).

Keene State obviously had no issue with granting Mayor Pete the right to speak on its campus. They have a policy, however, that severely limits free speech rights of anyone not running for President, and a history of banning individuals for exercising those rights from campus. Here's their policy, one that allows handing out written materials on campus, but only pursuant to regulations that are inherently vague and leave enforcement up to the discretion of campus officials:

Solicitation and distribution of literature in public areas of campus

Literature may be distributed on College property subject to the following provisions:

On College grounds, individuals and Keene State College community members may distribute literature provided that:

  • The free flow of traffic (pedestrian or vehicular) at any point is not obstructed
  • Distribution of literature activities shall be passive in nature and conducted between 8 a.m. and 10 p.m.
  • Literature is not placed on vehicles parked on campus
  • Tables or displays used to facilitate distribution do not block walkways or entrances to buildings. Tables or displays must be attended to at all times by the individual or group sponsoring the distribution
  • All individuals/organizations shall refrain from littering in the area
    Areas on campus not open to the activities described above shall include, but not be limited to, classroom and laboratory buildings, libraries, conference rooms, the residence halls, the gymnasium, and faculty, staff, or student offices.
  • Free speech, solicitation, and distribution of literature shall not be permitted if it is determined that they threaten public safety or public property, or if they disrupt or threaten to disrupt vehicular traffic, pedestrian traffic, or any educational, administrative or outreach activity.

Much like the Shaw case, where campus administrators had no problem with anti-Trump protesters, but singled out Shaw for violating its free speech rules, Keene State was fine with Buttegieg, his supporters and staff exercising their free speech rights, but targeted Solomon expressly because he was handing out material critical of Buttegieg. If Mr. Solomon had been handing out pamphlets supportive of Buttegieg, does anyone believe the campus police would have evicted him from the campus, cited him for criminal trespass and banned him from their campus for a year?

I believe Keene State's actions to remove Solomon from its campus at the direction of Mayor Pete's campaign would not pass constitutional muster, and I hope Solomon sues them. More importantly, Buttegieg should be called on the carpet by the media for the actions of his staffer. Also, he should be confronted publicly about this matter, and asked why his campaign felt it was necessary to violate the free speech rights of a non-violent, peaceful individual who was merely passing out literature critical of his policies and campaign.

Because, why should we trust a Presidential candidate who deliberately violates the constitutional rights of anyone who criticizes him? Why should we trust him to not violate the Constitution once elected whenever he wants?

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he doesn't appear to have as clear a First Amendment claim as the plaintiff, Mr. Shaw, in the California case cited. According to page 2 of the decision cited:

Shaw attends Pierce, which is one of nine community colleges within the Los
Angeles Community College District (the “District”).

While I'm not arguing the merits of rulings that hold that non-students have no rights to assemble and protest on publicly supported college campuses, I don't believe the Shaw decision applies in this matter. Also, a District Court ruling in the 9th Circuit has no binding power in New Hampshire, even if the case was factually similar.

I certainly agree that the little Buttegieg pin guy is an asshole for calling the campus cops.

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Raggedy Ann's picture

@leveymg
the person did not have first amendment rights where he stood? Don’t we have them wherever we are? Please help me understand.

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“The trouble [with injustice] is that once you see it, you can’t unsee it. And once you’ve seen it, keeping quiet, saying nothing, becomes as political an act as speaking out. There is no innocence. Either way, you’re accountable.”
-- Arundhati Roy

@Raggedy Ann authorize a person to enter every public space. There are limits to what public property you may enter and that depends upon whether there is a reasonable public interest in limiting access and activities. There is clearly a public interest in controlling access to a jail, or limiting noise in libraries, even if the intent of the protester is to voice constitutionally protected speech. State supported college campuses are a grey area. The answer to your question is, it depends.

Personally, I believe that handing out leaflets without obstructing pedestrian traffic or disrupting a meeting should not ordinarily be limited on any public property, with very few exceptions. The courts in New Hampshire and that Federal Circuit may have said otherwise about state college campuses.

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Raggedy Ann's picture

@leveymg
Pleasantry

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“The trouble [with injustice] is that once you see it, you can’t unsee it. And once you’ve seen it, keeping quiet, saying nothing, becomes as political an act as speaking out. There is no innocence. Either way, you’re accountable.”
-- Arundhati Roy

@leveymg restrictions can always be valid limitations on free speech rights. But if the state college does agree to provide space for political points of view on campus -- a campus auditorium and presumably its immediate periphery, a designated area for tables and booths to be set up to distribute literature -- the college cannot discriminate against one point of view absent very good reason, generally as stated in the college's rules.

I fail to see where the M4A literature person was violating any of them. He was just outside the auditorium and unless he was blocking people from leaving the building, it should have been allowed. It would appear it was his speech, the content of his speech, which was being objected to and discriminated against; the "trespassing" excuse doesn't hold up on a public campus.

My two cents.

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Not Henry Kissinger's picture

@leveymg

or just the one saying bad things about Pete?

TPM restrictions are an exception to the 1st Am, and any enforcement of those restrictions must still be CONTENT NEUTRAL.

Frankly, justifying the citation of a peaceful pamphleteer outside a Presidential candidate event is a tough enough TPM sell on its own for the college, since the public institution is INVITING political activity onto its campus at THAT TIME and at THAT PLACE by hosting the event.

But singling out a specific pamphleteer for arrest and future restraint from the campus solely because the candidate's campaign did not like what the pamphlet SAYS is an UNCONSTITUTIONAL, content based restriction under any plain reading of 1st Am caselaw.

There are also 1st AM prior restraint claims for stifling publication of the pamphlet, 14th AM equal protection and due process claims, along with whatever the NH state laws provide, but alleging a content based violation under the 1st AM is probably the strongest claim of all.

And yes... IAAL.

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The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?

Pluto's Republic's picture

@Raggedy Ann

...traditionally, historically, and continuously used for this exact purpose. Further, Solomon stayed well within the boundaries of any and all of the college's rules that pertain to passing out literature in that location.

Steve makes the point that if the literature was supportive of Buttigieg's proposed policy to deny Americans the important Human Right to health care for all — Solomon would not have been thrown from the campus and banned for a year.

Can a college located on government/public land force a specific political ideology on any person who stands on that same land? If two individuals were handing out flyers with opposing views at the college's traditional location for doing so, can the college bring criminal trespassing charges against one of the individuals in order to silence him because the college is more in agreement with the other? Can the college gag him for a year from expressing his opinion from the historic public location for voicing such expressions?

This is certainly the dystopia the American People are galloping toward as fast as they can, but I think it's still too soon for a court to admit this.

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Raggedy Ann's picture

@Pluto's Republic
Which is why I'm wondering - I've always been told free speech is free where you stand on campus. Maybe it's not so.

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“The trouble [with injustice] is that once you see it, you can’t unsee it. And once you’ve seen it, keeping quiet, saying nothing, becomes as political an act as speaking out. There is no innocence. Either way, you’re accountable.”
-- Arundhati Roy

Pluto's Republic's picture

@Raggedy Ann

Because certainly, when expressing an opinion from the designated location for doing so, one should not expect the college to arrive with armed law enforcement in tow to crown winners and banish losers.

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@Raggedy Ann

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We are so screwed.

ovals49's picture

@leveymg
specifically does not differentiate between students and “individuals”, both are treated equally in the college’s written policies on the activity. This may strengthen the pamphleteer’s infringement case, should it be pursued as a first amendment violation.

(Caveat: IANAL)

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"An oligarchy of private capital cannot be effectively checked .....because under existing conditions, private capitalists inevitably control, directly or indirectly, the main sources of information."
Albert Einstein

@ovals49 Solomon may well have cause for a suit against the college on discrimination grounds.

That makes the little Butt badge guy a rights violator.

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@ovals49 @ovals49 @ovals49 for me too, the inclusion of "individuals" with "and Keene College Community members". The phrasing would tend to suggest clearly that non-students would be considered "individuals".

(Interesting potential case as I see it. ETA: (ianal) There is usually a strong presumption in favor of free speech on public campus grounds, and it cannot be squelched absent damn good reason, valid and real reasons. Most of those are spelled out in the Keene set of rules cited. Mere disagreement about speech content or dislike of same is not sufficient to suppress the speech. Free speech rights by their nature are going to involve disagreement, dislike and controversy. This seems like a speech content-oriented action by the college security and so to me it seems vulnerable to a successful lawsuit.)

And what is it about Bootajudge's backers -- he seems to attract a lot of teacher's pets, hall monitors and campus security types. The Boot camp griping about one backer that didn't get a poll read correctly resulting in the major poll being squelched; the incident over the weekend with Jordan Chariton and his cameraman being harassed by a Boot bot security person at a NH venue where Jordan and his crew had valid press passes and where they were merely conducting polite interviews; and now this ridiculous Keene incident.

If the shoe were on the other foot, if these were Bernie backer-instigated incidents, the MSM would be all over it -- "BernieBros" Harassment Continues ...

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@wokkamile
That's what they would say.

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We are so screwed.

Not Henry Kissinger's picture

@ovals49 @ovals49

does not differentiate between students and “individuals”

The college invited the public onto the campus for the purpose of the political event. Whatever distinction it wants to make about who it prefers to be on its campus, it doesn't get to pick and choose who among the public can rightfully be on campus during the event based solely on an attendee's political views.

This is a public college, remember. Not private. By law if the college invites the general public, it has to invite ALL of the general public.

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The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?

Steven D's picture

@leveymg @leveymg @leveymg is not relevant to whether public college campuses are public forums where the gov't cannot interfere with your right to free expression absent an overriding concern such as for public safety.

The relevant legal issues are whether the free speech regulations imposed 1) had a legitimate reason 2) were not overly burdensome and 3) were applied consistently.

Remember, the standard of proof begins with the assumption by the court that any prior restraint on the exercise of first amendment rights is invalid.

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"You can't just leave those who created the problem in charge of the solution."---Tyree Scott

@Steven D inside the campus auditorium, Pete Buttigieg, was also not a member of the Keene College Community either as student, faculty member, staff or College Overseer.

If the campus allows non-member Pete to speak, they also by law must allow anti-Pete speakers, including NSolomon handing out literature outside, provided he is not blocking any exit doors and otherwise acting responsibly and within campus guidelines.

And, imo, the above is true as a matter of law regardless of whether the campus rules and guidelines specifically mention "individuals" in their stated rules.

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PriceRip's picture

@wokkamile

          Buttegieg was invited to the campus, Solomon was not invited to the campus. This difference is a matter of legal definition not logical inference.

          While you might prefer law to be logical it is (from my extensive professional experience) not always the case that logic will win over the letter of the law. I am so very sorry for the wet fish slap of reality.

RIP

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"I know you believe you understand what you think I said, but I am not sure you realize that what you heard is not what I meant."
Robert J. McCloskey, U.S. State Department spokesman. From a press briefing during the Vietnam war.

@PriceRip that the space was rented out for the rally. Wouldn't that give different rights to the renter? NH is last in the nation for state aid to it's colleges and I can't see them providing security and cleaning up after for free.

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PriceRip's picture

@Snode

          … involves a contractual arrangement that does not exist for a street preacher, or a hander out of pamphlets guy. Being invited to campus enhances the difference.

          But, as I implied, a street preacher, or a hander out of pamphlets guy are features of Nebraska campuses. I am surprised they are not so on California campuses as well as those in New Hampshire.

RIP

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"I know you believe you understand what you think I said, but I am not sure you realize that what you heard is not what I meant."
Robert J. McCloskey, U.S. State Department spokesman. From a press briefing during the Vietnam war.

@PriceRip dramatic has changed with CA campuses, last I checked when I attended a large CA university, admittedly a few yrs back, there was plenty of pamphleteering by an enormous range of groups, along with just members of the public taking their turn on the campus speech soap box several hours a day.

There are hundreds of colleges and universities throughout the state, the state where the campus Free Speech Movement was born. You shouldn't generalize from one incident on one small college campus.

As for NH campuses, given that tiny state is so much involved in the political process every four years, for months at a time, I'm surprised about the thread author's info about Keene and its history of speech limiting or suppression. Would have thought otherwise.

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@PriceRip But again, ianal, so from my perspective: it's a public institution which has invited the public onto its campus for a political event, with the usual TPM (time/place/manner) valid restrictions and consistent with 1A rights as to no discrimination based on speech content. By inviting Boot to speak, you cannot turn around and violate the rights of an anti-Boot speaker (Solomon) who is lawfully engaging in free speech and abiding by campus TPM rules.

But as ianal and am just trying to work through this as best I can, I will let NHK speak to this from his post above:

Frankly, justifying the citation of a peaceful pamphleteer outside a Presidential candidate event is a tough enough TPM sell on its own for the college, since the public institution is INVITING political activity onto its campus at THAT TIME and at THAT PLACE by hosting the event.

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PriceRip's picture

@leveymg

          What you are describing supports the notion that Nebraska is more liberal than California. That is a shock!

RIP

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"I know you believe you understand what you think I said, but I am not sure you realize that what you heard is not what I meant."
Robert J. McCloskey, U.S. State Department spokesman. From a press briefing during the Vietnam war.

Roy Blakeley's picture

but these days they seem to think they do. They seem, in many instances, to think they have the right to arrest someone simply because they don't like them or what they are doing or force them to move, even if what they are doing is legal. The first amendment is in tatters these days. In this case, it seems pretty obvious that they would have no grounds for arresting someone for trespassing if they are on a public campus.

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I'm thinking this is kind of a preview of what one might expect in a Buttigieg administration -- lack of respect for differing points of view; kind of the same smug, arrogant attitude displayed by a candidate whose record as a small town Mayor was a lot worse than the other small town mayor in the race -- remember Wayne Messam -- yet this guy got the MSM and money behind him and is now, IMO, the real Manchurian Candidate in the race -- a dangerous guy beholden to some big money donors that we all have to watch out for -- I hope he gets crushed in tomorrow's primary and becomes a footnote (as is Mr. Messam now) to the history of the 2020 Presidential race.

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travelerxxx's picture

@JCWeb

I'm thinking this is kind of a preview of what one might expect in a Buttigieg administration ...

Oh, surely not! I'm sure he'd have the most transparent administration in the history of the USA!

[Do I need the /s? I hope not.]

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@travelerxxx
the most transparent transgender administration

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May we be united and strong -- laurel

Not Henry Kissinger's picture

Think about it, this same fact pattern could have been written during the contested Presidential election of 1800, pamphleteers and all.

Preventing government officials from restricting speech on the basis of political viewpoint was the very FIRST concern of the Founding Fathers when they wrote the Bill of Rights - and during Federal elections for President particularly.

(Very nice essay, StevenD)

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The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?

Steven D's picture

@Not Henry Kissinger To me, it's an open and shut case and I hope some group like the ACLU provides the legal team necessary to sue the crap out of this college.

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"You can't just leave those who created the problem in charge of the solution."---Tyree Scott

TheOtherMaven's picture

@Not Henry Kissinger @Not Henry Kissinger

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There is no justice. There can be no peace.

Not Henry Kissinger's picture

@TheOtherMaven

The 1800 United States presidential election was the fourth presidential election. It was held from Friday, October 31 to Wednesday, December 3, 1800. In what is sometimes referred to as the "Revolution of 1800",[2][3] Vice President Thomas Jefferson of the Democratic-Republican Party defeated incumbent President John Adams of the Federalist Party. The election was a realigning election that ushered in a generation of Democratic-Republican rule.

There are actually a fair number of similarities to today if you think about it.

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The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?

econoclast's picture

I will paraphrase a famous quote (George Santayana?): "Those who forget their history are doomed to repeat it."

One of the more than 30 comments here mentions the University of California at Berkeley's Free Speech Movement of 1964-65 (see Wikipedia for details: https://en.wikipedia.org/wiki/Free_Speech_Movement).

I was a grad student at this university during the entire time. I knew the grad student who was arrested (and whose arrest precipitated the protest movement), Jack Weinberg. I knew the most famous speaker, Mario Savio. And I knew the Chancellor, Ed Strong. My father in law was a Vice Chancellor, and from him I received daily reports about the university's responses, many of which were clueless about the U.S. Constitution. All the issues of the threat to arrest Norman Solomon (who I also know) during Buttegieg's Keene State visit were embraced by the Free Speech Movement.

In October 2014 the University of California hosted a 50th-anniversary celebration and invited many of those student leaders who are still alive. The campus has a program named after Mario Savio. The campus administration in 1964 learned some hard lessons about freedom of speech and what not to do. At today's Keene State they seem not to have learned these lessons.

I will quote a line from a song of the 60s: "When will we ever learn?"

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