This summer’s protests following the
murders of George Floyd and Breonna Taylor reveal the costs of an ill-defined right
of peaceable assembly. Uncertainty about what is “peaceful” has fueled
grotesque law enforcement crackdowns and left protesters exercising their
constitutional rights at the mercy of officials. And it has also enabled Bill Barr and others to testify, with straight faces, that the dispersal of protesters on Lafayette Square and the
tactics deployed in Portland are warranted.
The Supreme Court has an
opportunity to reaffirm that political protests must not be chilled with
specious claims that individuals forfeit constitutional protection simply by
being in the vicinity of individuals who act violently this term. Despite the
vital need for such clarity, it is unclear if the Court will grant cert.
Equally unclear is how much it would resolve about the scope of the right of
assembly, given that, strictly speaking, McKesson v.
Doe
would only set forth the conditions under
which civil liability can be imposed on a protest organizer—not First Amendment limits on the power to arrest or disperse crowds. My view,
however, is that McKesson could
clarify a lot more than one might initially imagine.
A summer of
discontent—weak and uncertain First Amendment protections
Fueled by frustration with the
pandemic and mounting evidence of its disproportionate impact on communities of
color, the murder of George Floyd in late May precipitated a two-week period in
which the country saw some of the most extensive protesting in U.S. history. A second wave of Black Lives Matter protests for racial justice
and police accountability gained national attention in the wake of heavy-handed
federal crowd control tactics in Portland in July.
The vast majority of the demonstrations
we have seen this summer are comprised of precisely the type of crowds the
First Amendment is intended to protect—impassioned crowds, angry at abuses of
governmental power, seeking redress and reform. A minority have devolved into
riotous mobs.
Policing the line between constitutionally
protected protests and those that are unlawful is unquestionably a very difficult task. Unfortunately, law enforcement does a remarkably imperfect job
of distinguishing between the serene, angry, and violent elements of a crowd, particularly when all are present in a single
demonstration.
Their efforts are hampered by legal
ambiguities about when a “disruptive” protest—one that is inconvenient, loud,
angry, even obnoxious—ceases to be peaceable and loses constitutional
protection. The problem arises because the term “peaceably” (and its opposite “violent”), like the phrase “freedom of speech,” is not
self-defining.
The fairest statement of the law is
that while protesters can be subject to reasonable time, place, and manner restrictions,
only violence nullifies the protections of the First Amendment. Still, this
rule raises more questions than it answers—as we have seen this summer.
Violence, whether by an individual
or by several in concert, nullifies the protections of the First Amendment. But
what is the requisite level of violence to persons and property to fall out of First
Amendment protection? And how prevalent does the violence need to be? Some
cases are easy. Early on, several demonstrations descended into extensive
looting and burning of police cars. When a crowd engages in widespread lighting
public or private property on fire and looting entire blocks of stores—like in
Philadelphia on May 30-31—it becomes a mob.
The law gets much murkier, however,
in situations that do not rise to this
level of violence. Let’s assume throwing water bottles at police in riot gear
constitutes violence against persons. How many individuals have to engage in
these activities to justify a constitutional order to disperse the crowd? Must
law enforcement remove the offending individuals before taking the extraordinary
step of dispersing a crowd full of individuals peacefully exercising their
First Amendment rights?
Conversely, it is generally agreed
that an unlawful assembly can be dispersed. But what constitutes an “unlawful
assembly” for constitutional purposes? Do merely illegal acts render an
assembly unlawful and subject to a constitutional dispersal order? Do crowds
that do no more than defy time, place, and manner restrictions lose all First
Amendment protection? Philadelphia’s Police Commissioner defended her department’s
decision to disperse peaceful marchers on a Philadelphia highway on grounds that
the crowd had become unlawful once it entered the highway without a permit. While
she and the Mayor subsequently walked back their approval of the use of tear
gas, their apology is
somewhat ambiguous as to whether the dispersal order was itself unlawful.
In sum, despite clear
constitutional protection for disruptive protest, ambiguities in the law give
rise to colorable arguments justifying the over-policing of crowds this summer—if
not the level of force used to disperse or arrest individuals.
McKesson v.
Doe—An opportunity to bolster the right of assembly
The Supreme Court can address these
issues by granting cert in McKesson v. Doe (5th Cir. 2019). Although McKesson is a case about civil
liability, it could clarify, by analogy, the conditions under which it is
appropriate to disperse crowds, and limit police power to arrest individuals
for public order offenses during demonstrations.
The case arose out of incidents at
a Black Lives Matter protest that was allegedly organized by well-known
activist, Deray McKesson, in Baton Rouge, Louisiana. Although there is no
evidence that the protest writ large descended into violence, a police officer
was severely injured by a heavy object thrown by an unknown assailant. The
police officer sued McKesson. The Fifth Circuit (initially unanimously)
reversed the lower court to hold that McKesson, as an organizer, could be held
liable for the violent actions of this unknown individual, despite the absence
of a credible allegation that McKesson directed or encouraged that violent act.
The Fifth Circuit reasoned that
McKesson lost the protection of the First Amendment because he committed the
unlawful act of encouraging protesters to block a highway—an act he should have
foreseen would result in violence. McKesson has asked the Supreme Court to reverse
and reaffirm precedent, holding that
the First Amendment precludes imposing financial liability on protest leaders for
injuries inflicted by the uncoordinated, independent violent act of a third
party.
If the Court grants cert, I expect
it will reverse and reaffirm the holding of NAACP
v. Claiborne Hardware Co.—which involved an NAACP boycott in response to
the killing of a young African-American man by police. The chilling effects of
the Fifth Circuit’s rule are too stark to decide otherwise. Given the dizzying
array of reasonable time, place, and manner regulations today, the Fifth
Circuit’s principle that a protester loses First Amendment protection when she
commits an unlawful act effectively eviscerates First Amendment for protesters—even
if limited to contexts where violence is foreseeable. If adopted, the organizers
of the march that went sour in Philadelphia could not only be dispersed for
failing to have a permit but also subsequently held liable for any injuries to
police officers or damage to property perpetrated by third parties—even counter-demonstrators.
A win for
McKesson, however, could be an even bigger win for the right of assembly.
First, the
central principle in Claiborne Hardware Co. is that civil liability may not be imposed on someone merely
because she belongs to a group, some members of which committed acts of
violence, absent proof of coordination or incitement. Affirming that “[t]he
Constitution does not insulate violence, but it does insulate citizens from
responsibility for others’ violence,” (Willet, J., dissenting)
would be a big win for protesters as it would clarify that police cannot constitutionally
order an entire crowd to disperse simply because a small group threatens or
engages in violence.
Second, the Court could use McKesson to affirm that, as with speech, the First Amendment shield only disappears
when there is an imminent threat of violence. And the bar for the requisite
level of violence is high. This too would be a big win for protesters: Deciding
that the “First Amendment only allows civil liability for violent conduct that ‘occurs
in the context of constitutionally protected activity’” is a critical step
toward deciding that the First Amendment only allows criminal liability for
violent conduct that occurs in the context of constitutionally protected activity—a
much needed limit on the use of public order offenses to remove protesters from
the streets.
Third, the Court could (and should)
reject the Fifth Circuit’s suggestion that by violating reasonable time, place,
and manner restrictions, McKesson lost the shield of the First Amendment. Fourth,
and most ambitiously, McKesson
provides an opportunity for a textual turn in First Amendment law. The Court
could recognize that the First Amendment explicitly protects public assemblies,
a form of conduct. Moreover, the text
of the First Amendment makes clear that the question of constitutional
protection for an assembly turns on its peacefulness, not its legality. This is
not an entirely nitpicky point since the Fifth Circuit sought to thread the
line between speech and conduct, arguing that “the basis of potential liability
. . . was McKesson’s actions and conduct in directing the
illegal demonstration, not his speech and advocacy.”
Finally, McKesson offers an opportunity to reaffirm that political protest and
dissent is at the core of First Amendment and our democratic tradition—as Judge
Willett’s dissent nicely articulates. The value of such a reaffirmation should
not be underestimated. The past four years have
witnessed a range of efforts to de-legitimize
protests and the press, and have come at a time when both have been
exercised for the First Amendment’s core purpose: to highlight the government’s
failings, including persistent racism, violations of the rule of law,
corruption and mismanagement. The Court
should do whatever it can to say, “No.”
Final Thoughts
This summer’s police protests illustrated that, despite the Supreme
Court’s historical neglect of the
right to peaceably assemble, it still has a huge role to play in modern
American politics. McKesson provides the Court an opportunity to
reverse course and clarify both the importance and scope of the right to
assembly.
Tabatha Abu El-Haj is Professor Of Law at Drexel University Thomas R. Kline School of Law. You can reach her by e-mail at tabatha.abuelhaj at drexel.edu.