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The Supreme Court Dropped The Ball On The Right To Protest

Above photo: Militarized police attacking protesters. By Noah Berger AP.

Over the years, courts have carefully updated our speech protections while mostly ignoring the freedom of assembly.

Now they may have a chance to change that.

In recent months, US cities have seen widespread protests denouncing police brutality against unarmed Black people. Local and national law enforcement agencies, responding to crowds of unprecedented size and scale, relied on methods that were equally unprecedented. In Portland, federal officers unleashed torrents of tear gas and paintballs, pulled protesters into unmarked vans and severely injured one demonstrator in front of a federal courthouse.

Police in Orlando, Chicago, New York, and other cities resorted to the use of long-range acoustic devices (LRADs), a weapon frequently used by the U.S. military in sonic warfare and one with the potential to cause permanent hearing loss to those exposed to it. Other tactics were harsh enough to cause severe injuries, such as loss of vision, in at least 12 reported cases. National Guard helicopters hovered dangerously close to protesters in Washington, capturing images and videos of the crowds, kicking up shards of broken glass and sending many looking for cover.

For many Americans, this seemed to be exactly how the federal government is not supposed to respond to demonstrations in a country that has a constitutionally protected freedom of assembly. To be sure, in some cases, the harsher tactics were in response to outbreaks of crowd violence, including attempted arson of local police buildings in cities such as Portland. But independent expert reviews of police responses showed a clear pattern in which use of excessive force by the police escalated many confrontations. And to many watching at home or on the street, the police response was widespread enough in cities that it appeared the line between how law enforcement responds to mob violence and how it responds to regular assembly had been blurred.

There’s a reason for that: For more than 30 years, the Supreme Court has failed to take up a freedom-of-assembly case. As a result, this fundamental constitutional right is in sore need of an update, such as a ruling that would protect protesters from the unduly harsh police response that has become all too common as a response to demonstrations in recent years.

The First Amendment to the U.S. Constitution explicitly describes the right of the people to peaceably assemble. This right is recognized separately from the right to freedom of speech because the founders believed that the act of organizing a large crowd for a demonstration, parade or protest could be more powerful than individual speech, and was therefore even more susceptible to government encroachment. Like the right to religious expression, the founders gave the right to protest its own listing intending for the courts to give it special treatment and fashion unique legal standards that would ensure its protection. This has happened with the other specifically enshrined rights. With free speech, for example, the Supreme Court has in recent years defined specific kinds of modern speech—computer code, or speech on the internet—and protections for them.

But over the past 50 years, the courts have ducked that responsibility to protect the freedom of assembly, laying the groundwork for the hyperaggressive police response to protests that is observed in the streets today.

The Supreme Court shirked this responsibility first by holding that the right to assembly did not protect anything like the right to protest in the streets, beginning with a formative ruling in 1886. At the time, labor unrest and revolt were widespread, and many state governments were passing laws aimed at preventing potential insurrections by workers’ organizations. It had also become common practice for state police and troops to violently disperse labor union meetings and demonstrations, and in response to this practice, many labor groups began arming their members. When one group of German-American socialist workers organized a parade in Chicago, in which members carried unloaded rifles, members of the group were prosecuted for marching in the streets without a license from the governor. In addition to claiming that their Second Amendment right to bear arms had been violated, the members claimed that by marching in the streets, they were exercising their right to assembly.

The Supreme Court ruled that the right to assembly did not give a blanket right to protest in the streets. Instead, the court ruled that the First Amendment protected the right to speak to the government only through activities such as forming a political group or lobbying Congress. In effect, the justices subsumed the right to protest within the more expansive right of freedom of speech, suggesting that the right to protest would be subject to the same protections as individual speech.

But that’s not what happened. In fact, the court has over the years declined to protect the right to protest with one of the most important legal standards they have used to protect freedom of speech: the chilling-effect doctrine. This doctrine, first used by the Supreme Court and then frequently cited afterward in free-speech decisions in lower courts, holds that fear of government punishment can deter free expression as strongly as application of actual punishment. In cases involving individual speech, the courts rely on the chilling-effect doctrine to prohibit government action that makes people afraid to speak on a certain topic.

The origins of the chilling-effect doctrine go back to the Cold War. The U.S. government knew that it could not prohibit individuals from producing communist literature or joining communist organizations without violating the First Amendment right to free speech. Instead, to achieve the same goal, states and federal government passed laws that would have revealed to the government the identity of those sympathetic to the communist cause. For example, state employees were asked to take an oath of allegiance to the government of the United States, and those wanting to receive communist literature were asked to give their information to the U.S. Postal Service before receiving such material through mail.

Although none of these actions would have directly punished individuals for expressing their beliefs, the Supreme Court was quick to see the new threat they posed to the freedom of speech. It was enough, the Court ruled, that these requirements created an atmosphere of fear around certain expressions and that many might self-censor in the future out of fear of punishment. The Supreme Court found both of the above-mentioned laws to be unconstitutional in two separate rulings, citing the chilling-effect doctrine.

The court had already made the suggestion earlier that the freedom of assembly was essentially an extension of the freedom of speech, which would also seem to mean that the chilling-effect should apply to the freedom of assembly, too. But that is not how courts have ruled. For decades, lower-level courts ignored requests to apply the chilling-effect doctrine to harsh crowd-control tactics, finding the advocates’ plea that such practices can impact future participation in protests to be tenuous.

The courts’ failure to update Americans’ understanding of the freedom of assembly has given law enforcement free rein to deploy strategies that increasingly have the potential to deter future participation in protests. This is nowhere more evident than in the type of the cases that make their way to the courts. Whereas 10 years ago the courts had to decide whether NYPD’s use of mounted police that frequently stepped on protesters’ feet was objectionable (they decided that it was not), today they hear cases about armies of special forces equipped with riot gear, chemical weapons and other top-level military-grade weaponry. Every step of this transformation in policing crowds has been fueled by the courts’ refusal to rein in the proclivity for an increasingly stronger show of force.

But a slew of new cases gives the courts a new chance to revisit many of the faulty assumptions that have long bedeviled their approach to the right to protest.

This month, Oregon Attorney General Ellen Rosenblum, sued the federal government over the exercise of harsh protest-suppression methods in Portland. Rosenblum asked the federal court to declare such “police-state tactics,” to be unconstitutional, citing its potential to have a chilling effect on future lawful participation in protests. Similar lawsuits have been initiated by local activist groups in Chicago and in Minneapolis. In other cities, such as Seattle, legislative authorities are filling the gaps left by the courts, banning the use of nonlethal weapons, such as acoustic weapons and chemical irritants. In Oregon, Rosenblum’s request was blocked due to standing—meaning that someone else will have to raise the issue—and the pace of the other decisions will likely be slow because of the pandemic.

But the courts could finally have a chance to revisit the role they have played in shaping the slow eradication of the right to protest in the United States, the right that gave us the march to Selma and the women’s vote. And we should hope that this time, they find it worth protecting.

Kia Rahnama is a constitutional law attorney based in Washington, D.C. He frequently writes about law and politics and can be found at @Krahnama.

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