Demonstration

• Author: Vincent Blasi
• Pages: 767-768

Page 767

The FIRST AMENDMENT guarantees the right of persons to congregate peaceably in large numbers in appropriate public spaces in order to communicate ideas or grievances. In Edwards v. South Carolina (1963) the Court described an assemblage of 187 protesters on the grounds of a state capitol as "an exercise of ? basic constitutional rights in their most pristine and classic form." Mass demonstrations cannot be prohibited simply on account of their size or their need to occupy public land.

Constitutional litigation over demonstrations tends to focus on three issues. First is the question of what public spaces must be made available to demonstrators. By virtue of the number of persons involved, mass demonstrations can be disruptive of other activities even when the demonstrators remain peaceable and orderly. When must those other activities give way to the First Amendment claims of persons who wish to engage in a mass demonstration?

The Supreme Court has never given a definitive and comprehensive answer to that question, and probably never could. The Court has indicated, however, that demonstrations in PUBLIC FORUMS such as streets, sidewalks, and parks cannot be subjected to a blanket prohibition. On the other hand, the Court has upheld regulations that entirely prohibited demonstrations in a jailyard and in areas of a military base otherwise open to the public.

Second, the issue has arisen whether a demonstration can be prohibited or postponed on the ground that audience hostility to the demonstrators threatens to produce a BREACH OF THE PEACE. The Court has inveighed against any such "heckler's veto" in OBITER DICTUM, and has reversed disorderly conduct convictions of speakers who continued their orderly protests in the face of potentially threatening crowds. In language quoted many times in the United States Reports, the Court stated in TERMINIELLO V. CHICAGO (1949):

Page 768

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech ? is ? protected against censorship or punishment, unless shown likely to produce a clear and...