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.
Conclusion
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 drexel.edu.