Defining peaceably: policing the line between constitutionally protected protest and unlawful assembly.

• Author: Haj, Tabatha Abu El-
• Position: Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

1. INTRODUCTION

   The current wave of civil rights demonstrations in response to police killings began on August 9, 2014, after Darren Wilson, a white police officer, fatally shot Michael Brown, an unarmed African-American eighteen-year-old, in Ferguson, Missouri. (1) Outraged by the incident and by the fact that the body was left on the street for four-and-a-half hours--an image that went viral on social media--members of the community took to the streets. (2) They went out without securing the necessary permits and without visible connection to established local civil rights organizations. The mainstream media quickly framed the events in Ferguson as yet another urban riot in the face of perceived police abuses. (3) The story told over social media by those on the streets painted a much more complicated picture. (4) The mainstream press eventually caught on, and the once unknown City of Ferguson became a household word.

   While the events in Ferguson were the starting point, it was the failure of a New York City grand jury to indict the police officer responsible for the death of Eric Gamer that ultimately galvanized a movement, after sparking demonstrations in New York City and solidarity protests around the nation. (5) Eric Gamer, like Michael Brown, was an unarmed black man who died at the hands of police; Gamer's tragic death resulted from a police chokehold that was caught on videotape. (6) Among the many slogans to come out of those protests, the phrase "Black Lives Matter" has come to define the movement. (7)

   Since the incident in Ferguson, Black Lives Matter activists have publicized on social media the deaths of people of color at the hand of police officers in city after city, and each incident has triggered protests--a few large, many unpermitted. (8) Most recently, the death of Freddie Gray, a twenty-five-year-old black man who died after suffering fatal injuries while in police custody, led to large demonstrations in Baltimore. (9) The city was put under a curfew for over a week after the governor of Maryland declared a state of emergency and called out the National Guard in response to riots that convulsed the city for several days. (10)

   While there is no question that some of the participants in the Baltimore crowds, like those in Ferguson, crossed the line between constitutionally protected and unlawful assembly, angry and leaderless crowds that form to respond to perceived abuses of governmental power are always disruptive. (11) More importantly, the Founders fully understood this when they singled out assembly for First Amendment protection.

   The Black Lives Matter movement, therefore, provides a unique opportunity to revisit the Constitution's protection of a "right of the people peaceably to assemble." (12) Even more than the Occupy movement, the recent protests against the frequency with which unarmed African Americans die as a result of police officers' actions illustrate the serious consequences that flow from the Supreme Court's failure to appreciate that the First Amendment identifies a particular form of conduct--public assembly--for separate constitutional protection. (13) The fact that the Black Lives Matter protests often bear little resemblance to our idealized conceptions of public discourse--as reasoned disquisitions on difficult choices of public policy--underscores why the Founders recognized the need for a separate clause to protect assembly and the process of redressing grievances. It illustrates why the Supreme Court's contemporary jurisprudence, which collapses the right of assembly into the freedom of speech, is thoroughly misguided--leaving protestors feeling that First Amendment protections are weak and lower courts confused about how to decide what level of public disruption the Constitution requires officials to tolerate. In sum, the recent protests provide a unique opportunity to consider why outdoor assembly remains a valuable form of political participation, even in the digital age, and why it deserves more robust constitutional protections.

2. THE LIVED EXPERIENCE OF THE RIGHT OF ASSEMBLY

   Anyone who has sought solidarity with others as they protest the shooting of civilians by police will have noticed that protestors have little control over the time, place, and manner of their assemblies. Forced to navigate a wide array of hurdles to gain permission to be out in public legally and faced with police officers routinely handing out citations, at their discretion, for a variety of minor public order offences, protesters often experience their First Amendment right to peaceably assemble as somewhere between weak and nonexistent.

   This is because, while the Supreme Court has held that the First Amendment means, at the very least, that individuals are entitled to assemble in traditional public fora, such as public streets and parks, it has also held that cities may pass ordinances--permanent and temporary--to manage the time and location of demonstrations. (14) Indeed, the Supreme Court has held that permit requirements for public assemblies are presumptively constitutional. (15) Moreover, law enforcement routinely uses low-level criminal law to manage the disruptiveness of protests, with judicial approval. (16) Taken together, these two sources of law--municipal rules governing access to public space and criminal law (local, state, and federal)--render protestors supplicant to the authorities they are challenging.

   Unsurprisingly, law enforcement sees the matter quite differently. From their point of view, outdoor assemblies pose substantial risks to public safety. (17) The specter of disorder and violence may be greatest when the people taking to the street are disgruntled and insist on staying out into the night, but some risk of violence to persons and property is always present, arising as it does out of the very nature of assembly--a crowd out of doors being policed by government officials. (18) Moreover, all outdoor assemblies, however peaceful, are inconvenient in modern cities.

   Policing the line between constitutionally protected protests and unlawful assemblies is unquestionably a very difficult task. The Black Lives Matter protests that have occurred since Ferguson vividly highlight that outdoor assemblies exist on a continuum from peaceful to disruptive, and further, that disruption can range from illegal acts that are principally inconvenient to violent acts against other individuals.

   Unfortunately, cities routinely do a remarkably imperfect job of distinguishing between the peaceful, angry, and violent elements of an assembly, particularly when these forms of crowd behavior are present in a single demonstration. Thus, even where their behavior has been nonviolent and would traditionally have been understood to be peaceable, participants in the Black Lives Matter movement have frequently been charged with various misdemeanors, from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders.

   Ferguson provides a good illustration of this point. On the one hand, there is no question that aspects of the policing of the protests in Ferguson were both atypical and unconstitutional. For example, not only did the city regularly deploy tear gas and other chemical agents to disperse largely peaceful crowds without warning, its high-level officials formally encouraged individual officers to order demonstrators to walk at all times if they wished to avoid arrest for failing to move on. (19) On the other hand, the resort by law enforcement in Ferguson to enforcing an array of nonviolent misdemeanors, such as disorderly conduct and trespass to control and disperse crowds, is quite typical. (20) Between August and mid-September, by some reports, over 200 arrests were made--the vast majority of which were for failure to disperse or resisting arrest. (21)

   Courts, meanwhile, routinely uphold municipal efforts to circumscribe, control, and disperse crowds in the name of public order. (22) As I have argued elsewhere, they do so because they have fundamentally misunderstood the reasons that the Founders singled out public assembly for explicit constitutional protection. (23)

   The result is that today, a citizen's right to come out to protest--or merely express solidarity with others--in response to a current event depends significantly on local officials' tolerance for inconvenience and disorder. While some cities tend to crack down hard on spontaneous or disruptive assemblies, others, like Philadelphia in recent years, are more tolerant. (24) Tolerance can come from high up or from low down--from ignoring missing permits or from refraining from arresting for minor offenses.

3. THE RIGHT OF THE PEOPLE TO PEACEABLY ASSEMBLE

   The text of the First Amendment articulates two distinct rights: the freedom of speech and "the right of the people to peaceably assemble." (25) Now one might wonder how efforts to manage disorderly crowds could constitute an infringement of a right to peaceably assemble? The answer is that, like most terms in our Constitution, peaceably is not self-defining.

   The central interpretive question, therefore, has always been where to draw the line between a constitutionally protected assembly and a criminally punishable mob. While riots and unlawful assemblies have always been understood to fall outside of constitutional protection, what constitutes a riot or unlawful assembly is much less clear. (26) More specifically, the uncertainty "revolves around how violent or disorderly a crowd may be before it loses First Amendment protection." (27)

   There is little question that setting objects on fire renders an assembly unlawful, but it is less clear that blocking a highway should count as unpeaceable for First Amendment purposes. Meanwhile, the stickiest question today is whether engaging in illegal but nonviolent acts should render an assembly unpeaceable? The issue is particularly difficult where the nonviolent illegal act is...