Our Endangered Right to Protest

The founders protected demonstrations, even if drunk and disorderly, because assembly was an essential freedom. Today, courts and cops crack down on protests. Why liberals and conservatives should fight back.

It has been a year for politics outdoors. On the day George Floyd was murdered in Minneapolis, many could have predicted that there would be an outpouring in the city to demand accountability for yet another callous police killing of a Black man. Few would have anticipated that the slaying would spark a full month of demonstrations calling for a fundamental rethinking of policing across the nation—or that the ensuing protests would draw 15 to 26 million Americans to the streets. The iconic civil rights marches of the 1960s drew out Americans in the hundreds of thousands, not millions.

But in a year when Americans have been on the streets making political demands, the right of assembly has proved elusive. The First Amendment explicitly protects “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” But where has it been this past year, when we have struggled to delineate the line between constitutionally protected and unlawful assembly?

This past year demonstrated that, even in the high digital age, taking to the streets remains a critical source of political power for everyday Americans. But cities also experienced rioting. As in Baltimore after Freddie Gray’s killing in 2015 and in Ferguson, Missouri, after the death of Michael Brown, some participants, especially at night, crossed the line. And on January 6, 2021, the world watched an all-out riot at the U.S. Capitol.

For many Americans, this tension has confirmed their fear of a broad construction of the right of assembly. The Founders, however, fully understood such risks when they singled out assembly for robust First Amendment protection. Angry crowds that form to respond to perceived abuses of governmental power are inevitably disruptive, and they can pose substantial risks to public safety, especially when the police are out in great force. Still, as revolutionaries, the framers of the amendment recognized that First Amendment freedoms need breathing space to survive. They recognized that public assemblies need license to be disorderly. And they wrote the First Amendment with this wisdom in mind.

We, however, have lost that wisdom. In a year where Americans have assembled in record numbers for political ends, the people’s constitutional “right . . . peaceably to assemble” has been strikingly absent—both on the streets and in courts.

For protesters on the street, the right of peaceful assembly has been a mere parchment barrier—routinely shredded by police tactics, even in situations where police themselves have admitted the protesters were peaceful. The afternoon of June 1, 2020 is illustrative. One week after the murder of George Floyd, hundreds of peaceful protesters gathered outside Philadelphia police headquarters. Accounts differ, but it is undisputable that at some point the crowd that had grown to 5,000 entered the Vine Street Expressway, a local highway that bisects the city. The demonstrators did not have a permit for this location; their actions were indisputably unlawful. Yet, police on their own radio dispatches described the participants as peaceful and non-threatening. Nonetheless, they issued verbal commands for the crowds to disperse. Throngs of protesters continued to make their way on to the highway. (Some participants claim they didn’t hear the warning.) The scene was confused to be sure. Mayhem, however, it was not—not that is, until officers deployed pepper spray and tear gas, trapping many within the clouds of chemicals by blocking off exit ramps. The Philadelphia Police Commissioner and Mayor’s initial response was to endorse the response by claiming violence “and other criminal activity” cannot be tolerated.

Policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult. Many believe we should defer to the police, even in situations like the one described above. Video footage from Philadelphia that day does show the Vine Street Expressway obstructed, individuals throwing water bottles from the surrounding overpasses, and a small crowd surrounding a police SUV.

But such doubts about the scope of First Amendment rights for protesters are a stark contrast to the attitudes of previous generations of Americans. Historical accounts from the late eighteenth to the late nineteenth century show significant constitutional accommodation for unruly and disruptive crowds—something that originalists, textualists, and conservatives should duly note.

Despite being notorious for routinely holding individuals criminally and civilly responsible for their libelous, indecent, obscene, and blasphemous speech, nineteenth-century American courts consistently vindicated an expansive conception of the people’s right to assemble for political ends

An imminent risk of violence to persons or property was considered a prerequisite for authorities to disperse people gathered for political ends. Crowds could be dispersed only where they descended into a “riot” or “unlawful assembly”—common law crimes that early American courts applied to violent scenarios. The level of violence that would transform a peaceable assembly into a riot was high. The views of the 1889 Illinois appellate court, in Trotter v. City of Chicago, are typical of the period:

Under a popular government like ours, the law allows great latitude to public demonstrations, whether religious, political or social, and it is against the genius of our institutions to resort to repressive measures … to encroach on [such] fundamental rights.

The same cannot be said today. A recent study found that 96 percent of protests for racial justice in 2020 involved no injuries to persons or property. Yet it was not just in Philadelphia that Americans who took to the streets demanding police accountability were met with tear gas, pepper spray, and rubber bullets. Indeed, the Attorney General of the United States himself ordered the forcible removal of Americans peacefully protesting in Lafayette Square.

The First Amendment offered little constitutional cover in practice from these forced dispersals, or from the many other arrests. According to a House Oversight Committee briefing, more than 10,000 individuals who participated in anti-police brutality marches in May and June 2020 were arrested, mostly for nonviolent misdemeanors. The vast majority of these charges—upward of 90 percent in many jurisdictions—have been dropped or dismissed. Such arrests, even when they are subsequently dropped, nullify the formal constitutional right by taking protesters off the streets at the moment they wish to register their protest. And they create fear and reticence to participate again.

Protesters have fared only slightly better when their claims have been heard by courts. Judge Algenon L. Marbley, Chief Judge for the Southern District of Ohio, recently estimated that there have been no fewer than 73 constitutional challenges arising out of the summer’s protests of George Floyd and Breonna Taylor’s murders. Yet, for the most part, judicial vindication of the right of peaceable assembly has been overshadowed by claims under the Fourth Amendment’s right to be free from excessive force. Even in those cases that do engage with First Amendment issues, courts have not adjudicated the constitutionality of the dispersal orders themselves. Judge Marbley himself only ruled that the plaintiffs were likely to succeed in proving that the Columbus police department’s decision to use force against nonviolent protesters had been in retaliation for the anti-police message of the protests. His decision takes no official position on whether any of the dispersal orders were, per se, a violation of the First Amendment, even though he credits testimony from a police commander that in at least one of the incidents under review, “99% of these people are peaceful”—yelling, but not threatening anyone. His opinion in Alsaada v. City of Columbus thus does not clarify the scope of the right of peaceable assembly.

This judicial passivity, frankly, is shocking. All year long, the primary question for protesters and observers, reporters and legal advisers, has been how much disruption short of violence is protected by the First Amendment. In Graham, North Carolina, police pepper sprayed a 200-person crowd marching from a local church to the courthouse on the last day of early voting. The police intervened when the crowd interrupted their get-out-the-vote march to kneel in silence in honor of George Floyd and then again when they congregated before the courthouse to hear speeches. Graham’s police chief justified these dispersal orders, calling the assembly “unsafe and unlawful.” Why? The organizer, a local Reverend, had missed the deadline for requesting a street closure to accompany the permit he had obtained.

Do assemblies that engage in unlawful acts categorically forfeit their First Amendment right to assemble? The spat of anti-protest bills making their way through state houses are banking that the courts will say yes. There is little question that the framers of the First Amendment would have disagreed.

Violence unquestionably nullifies the protections of the right of assembly. Assaults on police officers, like the forcible entry, pillaging, and direct threats to lawmakers in the Capitol building on January 6 or the looting in Philadelphia last spring, are not protected by First Amendment.

But the men who insisted on the adoption of the First Amendment would likely have viewed citizens unlawfully entering a local highway during rush hour, congregating in the roadway before a courthouse, or patriotically marching down Pennsylvania Avenue to demand courage and boldness from Vice President Pence, as then President Trump urged his supporters to do, differently—even without permits.

The original meaning of the term “peaceable” was not intended to be “to be confused with ‘legal’ or ‘permissible.’” Merely illegal acts did not render one outside constitutional protection. Instead, it was violent acts that rendered individuals and groups outside constitutional protection. Parades, open-air meetings, and marches occurred regularly in American streets and parks. Contemporary reports of such outdoor politics vividly describe disruptive activities, including bonfires, drinks and toasting, even the burning of political figures in effigy.

All this rowdiness was abided because street gatherings were recognized as essential to civic and political life. The Kansas Supreme Court’s tolerance for unruly and disruptive crowds is representative. Writing in Anderson v. City of Wellington (1888), the Court admonished, “The right of the people in this state, by organization to cooperate in a common effort, and by a public demonstration or parade to influence public opinion and impress their strength upon the public mind, and to march upon the public streets of the cities of the states… is too firmly established, and has been too often exercised to be now questioned.”

Indeed, most cities did not even require groups seeking access to public streets or parks to obtain permits. Philadelphia, which was an early adopter of permit requirements, did not adopt any such regulations until after the Civil War.

The right to assemble was understood to have a broad scope. Participation in even unruly assemblies, absent significant violence, was understood to fall within constitutional protection. As summarized in an 1899 treatise authored by John Randolph Tucker, although “the right of the people peaceably to assemble… does not prevent interference with the riotous assemblages of the people; where there is no riotous conduct the government cannot interfere.” Moreover, the requisite level of violence was high. Disruption, short of violence, did not eject one from constitutional protection, and Americans were not required to ask permission to use the streets.

This makes sense. The men who founded the United States, as revolutionaries, knew first-hand that politics requires collective political acts. They understood that unfettered exchange of ideas is not enough to bring about political and social change, that change sometimes requires public assemblies, petitions for redress of grievances, and in their case, even a war. They also understood that political crowds might get unruly. When the Sons of Liberty dumped British tea into Boston Harbor, the colonists argued it fell within their constitutionally protected liberties as Englishmen, despite their trespass and defacement of private property. The First Congress wrote the First Amendment with this experience in mind.

The right of peaceable assembly preserves the promise that fundamental political or social change is possible in our republic. It ensures, for the people, the power to end colonial, economic, or social oppression. It reserves their right to object to the result of an election, even challenge its legitimacy; or to demand fairness and racial justice in citizenship, voting, employment, and encounters with the police.

Indeed, there is little question that, as the Supreme Court held in Bates v. City of Little Rock, a Civil Rights Movement case, “the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government based upon the consent of an informed citizenry.” The right of peaceable assembly, as Judge Don Willett of the 11th Circuit recently noted, was meant to protect “raucous public protest—even ‘impassioned’ and ‘emotionally’ charged appeals for the use of force;” and its protection is lost only when participants “clearly intended to, and [are] likely to, spark immediate violence.”

When people take to the streets with their fellow citizens to voice concerns about important public policies, they get politicians’ attention. The wave of Black Lives Matter marches have placed not only police training but also budget reforms on the legislative agenda around the country. In a world where money is the usual key to political access, persistent protests forced elected officials to engage with constituents, literally drawing leaders to the streets from Pensacola, Florida to Portland, Oregon — and refocusing their attention on long-standing systemic patterns of racial discrimination in policing and health.

Is it so incredible to imagine that the First Amendment, which provides near-absolute protection for pornography, hate speech, lies, and violent video games, should provide protection for protesters, like those in Philadelphia, who unlawfully disrupted traffic by taking their march onto a local highway to demand justice?

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Tabatha Abu El-Haj

Tabatha Abu El-Haj is a Professor of Law at Drexel University’s Thomas R. Kline School of Law and a leading expert on the First Amendment and the right of peaceable assembly.