Tuesday, August 11, 2020

Our Best Bet—Legislating a Robust Right to Peaceably Assemble

Guest Blogger

Tabatha Abu El-Haj

In my last post, I suggested that McKesson v. Doe (5th Cir. 2019) provides an opportunity for the Supreme Court to clarify important First Amendment limits on policing angry and disruptive political crowds—even though the question presented concerns only First Amendment limits on civil liability for protest organizers. What I omitted was how easily the Court could postpone, even avoid, resolving these issues by certifying to the Louisiana Supreme Court the threshold question of whether state law imposes a duty on protest organizers to protect others from the criminal violence of individual protesters. This path, suggested by Judge Willet’s dissent, is available because the Fifth Circuit’s First Amendment ruling is predicated on the dubious finding that Officer Doe pled a plausible negligence claim under Louisiana law.

Fortunately, we do not need the Supreme Court to vindicate the First Amendment’s right of peaceable assembly. Indeed, legislatures could, and should, exercise their powers to address the legal ambiguities that have left the assembly rights of Black Lives Matter protesters at the mercy of law enforcement.

Here are a few concrete starting points.

First, state legislatures should amend statutory definitions for crimes of riot and unlawful assembly to specify that where First Amendment activity is involved—unlike a bar fight—the crimes require a concerted and imminent threat of violence to persons and property—not mere “lawbreaking.” Some states already do this. But many operate with more amorphous definitions of these crimes. In Minnesota, for example, the offense of riot requires “an intentional act or threat of unlawful force or violence to person or property.” Minn. Stat. Ann. § 609.71 (emphasis added). Meanwhile, the state defines an unlawful assembly as,

When three or more persons assemble, . . .:
(1) with intent to commit any unlawful act by force; or
(2) with intent to carry out any purpose in such manner as will disturb or threaten the public peace; or
(3) without unlawful purpose, but the participants so conduct themselves in a disorderly manner as to disturb or threaten the public peace.

Id. § 609.705 (emphasis added).

Some might argue that the limit must “disturb or threaten the public peace” is sufficient, but it strikes me that if mainstream, white Americans have learned anything from Black Lives Matter, it is that “threat” is in the eye of the beholder.

Pennsylvania’s law is even worse, defining a riot as “a course of disorderly conduct” undertaken with two or more others under one of the following conditions:

(1) with intent to commit or facilitate the commission of a felony or misdemeanor [i.e., unlawful acts];
(2) with intent to prevent or coerce official action; or
(3) when the actor or any other participant to the knowledge of the actor uses or plans to use a firearm or other deadly weapon.

18 Pa. Stat. and Cons. Stat. Ann § 5501.

To make matters worse, Pennsylvania goes on to criminalize “Failure of disorderly persons to disperse.” Id. § 5502.

Clearly limiting these crimes to acts of violence to persons or property would go a long way toward safeguarding protesters rights in the streets. When it comes to the freedom of speech, it is well-established that the First Amendment shield only disappears when there is an imminent threat of violence. And further, the bar for the requisite level of violence is high. The same principle, historically, applied for assemblies. Indeed, the text of the First Amendment is explicit on this point—protecting “the right of the people peaceably to assemble.” And there is good reason to believe that the original meaning of the term peaceable” was not intended to be “to be confused with ‘legal’ or ‘permissible.” Even clearer, through the nineteenth century, the crimes of riot and unlawful assembly were narrowly construed by American courts to violent situations in recognition of a tradition of outdoor politics grounded in the people’s longstanding right of peaceable assembly. Unfortunately, over the years the waters have been muddied by courts, in numerous ways.

Second, legislatures should do the same for catch-all public order offenses. Statutes should explicitly foreclose the use of crimes such as disorderly conduct and breach of the peace in contexts protected by the First Amendment, absent an imminent risk of violence. To leave things as is, is to condone the routine suppression of constitutionally protected activity. The largest and most consistent threat to protesters’ rights in the last decade has been the overuse of individual arrests for catch-all public order offenses. These offenses are remarkably broad. In Oregon, “[a] person commits the crime of disorderly conduct . . . if, with intent to cause public inconvenience, annoyance or alarm . . .[s/he] (a) Engages in fighting or in violent, tumultuous or threatening behavior; (b) Makes unreasonable noise; [or] . . . (d) Obstructs vehicular or pedestrian traffic on a public way.” Or. Rev. Stat. Ann. § 166.025. The law in Pennsylvania, New York, and Missouri is similarly broad.

Precedent from the 1960s made clear that it is unconstitutional for government officials to use these crimes to suppress constitutionally protected assemblies. But given the language of the statutes, law enforcement regularly use them to get protesters off the streets, and courts never get a chance to reaffirm the old precedents because charges are routinely dropped or dismissed. This has been a consistent pattern for years. Taking the step to legislatively limit their applicability in the context of First Amendment activity would be an important step in the right direction.

Finally, and most ambitiously, lawmakers should clarify that failure to obtain a permit, failure to abide by the terms of a permit, or obstructing traffic may lead to fines, but is not grounds for dispersal or declaring an assembly unlawful. The text of the First Amendment makes clear that the question of constitutional protection for an assembly turns on its peacefulness, not its legality. And historical precedent from the civil rights era aligns with this principle: Civil rights activists routinely engaging in unlawful but peaceful acts by breaking segregation and assembly laws.

Executive officers could, and should, also act. Mayors and Police Commissioners—especially those who have criticized President Trump’s attitude toward dissenters or repented their own decisions—could adopt policies that clearly circumscribe the discretion afforded to law enforcement in policing large, disruptive, nonviolent crowds. More ambitiously, they could impose an affirmative duty to remove individuals or groups engaged in fire-setting, rock-throwing, or looting before ordering wholesale dispersal of, otherwise, largely peaceful protesters. They could, that is, embrace policies that “insulate citizens from responsibility for others’ violence,” as Judge Willet acknowledged the Constitution requires.


Legislators swear an oath to uphold the Constitution, and it is time that they made good on it. Even in the high digital age, outdoor crowds play a huge, and increasing, role in American politics. The convergence of social media, economic inequality, and partisan polarization have fueled the reemergence of a distinct form of protest as a central tactic in the repertoire of millennial democratic politics. The 2020 Black Lives Matter demonstrations follow the March for Our Lives, the Women’s March, a previous round of Black Lives Matter protests, and the Occupy Movement—to name just a few of the most salient examples. Legislatures can, and should, take concrete steps to reinforce legal protections for this form of politics, a form explicitly protected by the First Amendment and central to responsiveness in governance.

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

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