Governments may not violate the constitutional right of peaceable assembly, which is one of the rights outlined in the First Amendment of the Constitution of the United States. Following are several cases related to the right of freedom of assembly, including the landmark case De Jong v. Oregon in 1937.
- Bates v. Little Rock (1960)
In Bates v. Little Rock (1960), the Court affirmed that freedom of association finds protection within the First Amendment’s free speech and assembly clauses...
- Carroll v. President and Commissioners of Princess Anne (1968)
Carroll v. President and Commissioners of Princess Anne (1968) said an injunction to keep a white supremacist group from rallying violated the First Amendment...
- Coates v. City of Cincinnati (1971)
Coates v. City of Cincinnati (1971) said an ordinance making it a crime for three or more to gather in public and engage in “annoying conduct" violated the...
- Cox v. Louisiana (1965)
In Cox v. Louisiana, the Supreme Court overturned a state law used to arrest civil rights marchers saying the law infringed upon freedoms of assembly and speech...
- De Jonge v. Oregon (1937)
De Jonge v. Oregon (1937) said that state governments may not violate the First Amendment right of peaceable assembly. The decision contributed to symbolic...
- Edwards v. South Carolina (1963)
Edwards v. South Carolina (1963) said South Carolina violated students’ First Amendment rights when the police dispersed a peaceful protest against...
- Gregory v. City of Chicago (1969)
In Gregory v. City of Chicago, the Court upheld the First Amendment rights of peaceful protestors over police attempting to quell anticipated civil disorder...
- Hague v. Committee for Industrial Organization (1939)
Hague v. Committee for Industrial Organization (1939) dealt with the freedom of assembly and set the precedent for the public forum doctrine in First Amendment...
- Shuttlesworth v. Birmingham (1969)
Shuttlesworth v. Birmingham (1969) ruled that the conviction of the Rev. Fred Shuttlesworth for leading a protest march without a permit violated the First...
- Thomas v. Collins (1945)
In Thomas v. Collins (1945), a labor case, the Supreme Court enunciated the preferred position doctrine for First Amendment freedoms of speech and assembly...
- United States v. Cruikshank (1876)
U.S. v. Cruikshank (1876), which arose out of the Colfax Massacre, is important in First Amendment jurisprudence for statements made about freedom of peaceable...
Throughout the nation’s history, Americans have taken to the streets to protest government policy or demand action on issues dear to them—colonists seeking independence, abolitionists protesting slavery, labor unionists marching for economic rights, suffragettes demanding the right to vote, and a broad coalition advocating for civil rights.These individuals exercised their First Amendment rights to assemble peacefully and petition the government for a redress of grievances. Such public protests often served as the catalyst for social change. Scholar John D. Inazu writes that “[t]he freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement.”
The right to peacefully assemble is necessary because it gives people a means to contest government power. But this right isn’t limitless. Government and law enforcement have certain powers to reasonably limit the time, place, and manner of protest to ensure public safety and to arrest lawless actors. The challenge is in distinguishing between reasonable restrictions aimed at maintaining peace and unreasonable restrictions intended to chill dissent.
This teacher guide examines the role peaceful protest has played in United States history, how the law evolved to ensure greater protections for protest, and contemporary threats to assembly rights.
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Sample Lesson Plan
Guest in Your Class
First Amendment Watch founding editor Stephen D. Solomon or another expert are available to visit your class on issues covered by our teaching guides. Professor Solomon has recently appeared as a guest at classes at University of Maryland, Penn State (six classes), Tulane Law School, Tulane University School of Liberal Arts, Marymount Manhattan College, and Korea University. Please email us if we can be of assistance.
Objectives
- Discuss protests in the American Revolutionary era and how the country’s founding generation regarded protest and assembly.
- Discuss examples of peaceful protest in American history.
- Examine when governments can impose reasonable, time, place, and manner restrictions on protest activities. Understand the concept of civil disobedience.
- Read about recent legislative proposals that threaten protest rights.
Contents
- Quelling Protests in Lafayette Square
- The Right to Peaceful Assembly
- Political Protest in the Revolutionary War and Founders Era
- The Civil Rights Movement
- Time, Place, and Manner Restrictions on Protest Activities
- Anti-Protest Laws
- Civil Disobedience
- Resources
- Glossary
*In addition to using our guides in your classroom, you may be interested in inviting an expert to talk to your students about the law and its contemporary implications. Reach out to us firstamendmentwatch@nyu.edu about scheduling an appearance with our founding editor Stephen D. Solomon.
Solomon is the Interim Director of the Arthur L. Carter Journalism Insitute, where he also teaches First Amendment law. His most recent book, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 2016), explored the birth of freedom of expression in America’s founding period.*
Quelling Protests in Lafayette Square
On June 1, 2020, U.S. Park Police removed peaceful protesters from Lafayette Square in Washington, D.C., a patch of land that sits directly north of the White House. For weeks, people had gathered in the square to demonstrate against police killing of unarmed Black citizens, such as George Floyd in Minneapolis, Minnesota, and Breonna Taylor in Louisville, Kentucky. Because of its proximity to the White House, protesters have historically chosen Lafayette Square to air political grievances, including protests for women’s rights in the 1910s, and protests against the lynching of Black people in the 1940s.
At around 6:30 p.m., at least a half hour before the city’s 7:00 p.m. curfew, law enforcement officers in riot gear used tear gas, riot batons, and grenades containing rubber bullets on peaceful demonstrators in an effort to disperse the crowd. The police had been given orders to clear a pathway for President Donald Trump so he could pose for pictures in front of St. John’s Church, which had suffered fire damage earlier that week amid protests. Videos later emerged showing officers hitting and shoving protesters and reporters with their shields.
The following morning, the Secret Service announced that Lafayette Square would not be accessible to the public for an indefinite period of time in order to “ensure public safety.” From June 2 to June 11, the area was blocked by 10-foot-tall fences.
The violent dispersal of protesters at Lafayette Square drew condemnation from both sides of the aisle. Washington, D.C. Mayor Muriel Bowser, a Democrat, told CNN that she and district officials “were very shocked, and quite frankly outraged, that people who were not violating the curfew, and who did not seem to have provoked attack, were attacked and moved out by federal law enforcement officials to clear the way for the President.” Republican Senator Susan Collins described the President’s actions as “insensitive to the rights of people to peaceful protest,” and Senator James Lankford, a Republican from Oklahoma, criticized his decision to hold a photo op outside the church. “Everyone knew there were going to be protesters in that area,” Lankford said.
On June 11, 2020, Radiya Buchanan and several other protesters filed a lawsuit in the U.S. District Court for the District of Columbia against President Trump, Attorney General William Barr, and other federal officials over the clearing of the protesters in Lafayette Square. The protesters argued that the government had failed to provide any adequate justification for its use of force, and criticized the closing of the park that, they noted, had “long served as a key gathering place for peaceful assembly in the nation’s capital.”
The Buchanan lawsuit is far from the only lawsuit challenging governmental crackdowns on the right to protest. Many of the lawsuits contend that recent measures employed by government officials, from the imposition of curfews to the jailing of protesters, violate fundamental First Amendment freedoms.
The Right to Peaceful Assembly
The freedom of assembly is one of five freedoms in the First Amendment that together express the necessary components of the democratic process in a self-governing society. The first freedom, religion, pertains to the right of conscience. The second, speech, pertains to the exchange of ideas among people speaking with one another. The third right, freedom of the press, protects the institutional means of distributing ideas beyond a few individuals to a mass audience. Once those ideas have been spread, the fourth right, assembly, protects the right of like-minded people to gather together. The final part of the democratic process is protected in the fifth right, that of petitioning the government for a redress of grievances.
The first three freedoms, with good reason, often dominate classroom discussions on the First Amendment, as they are better known by the general public. But the right to peaceful assembly is arguably the most visible and impactful of the five. Peaceful assembly carries enormous potential to convey messages and shift popular opinion. Consider that certain peaceable assemblies—such as the historic March on Washington in Washington, D.C. in 1963—remain indelibly imprinted in American consciousness. That gathering of more than 250,000 persons in the nation’s capital helped spur the move to landmark federal civil rights legislation, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Attorney Emmanuel Hiram Ahnaud aptly notes that “it is impossible to create a movement without assembly.” Political movements gain momentum when they amass public support, when individuals collectively exercise their voices in a democracy to make their message heard. A lone pamphleteer or one individual on a soapbox cannot match the power of thousands of people marching for a common purpose.
Justice Louis Brandeis articulated this rationale quite beautifully in his concurring opinion in Whitney v. California (1927), when he wrote that “the path of safety lies in the opportunity to discuss freely grievances and proposed remedies.” In other words, the assembly clause of the First Amendment acts as a kind of “safety valve”: individuals who have the right to express frustration over government policies are less likely to be drawn to violence.
The right to assembly, however, has often come with conflict over rights. What happens when a fringe group in an otherwise peaceful protest turns violent? How has the state historically responded to unpopular causes? It’s the litigation over these tensions that has clarified the rights of protesters.
Discussion Questions
- Protesters that challenge popular laws or government policies may be perceived by some as a public nuisance rather than a public good, at least at the time of the protest. Why is it important to leave room for these sorts of gatherings, even when the majority of people disagree with their message?
- How is the protection of political protest demonstrations critical to self-governance in a republican form of government?
- Consider the government’s forced dispersal of the protesters at Lafayette Square on June 1st. Why was it important for Republican Senators to criticize the forced shutdown, even if they may have disagreed with the protesters’ message?
Political Protest in the Revolutionary War and Founders Era
Protest is a time-honored American tradition. Stephen D. Solomon, in his book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech, explains: “The broad freedom of expression and vigorous political culture enjoyed by contemporary Americans was actually born in this country centuries ago.”
This vigorous political culture includes both protest and the spirit of dissent. Both are important for self-realization and autonomy. After all, as scholars Ronald K. L. Collins and David Skover write in their book, On Dissent: Its Meaning in America, “[t]he liberty of self is meaningless if one must always conform to majority will.”
During the founding period, colonists protested policies of the British government that they viewed as violating their political or economic rights. In fact, colonial protest against the dreaded Stamp Act inspired one of the early examples of symbolic speech—effigies on a liberty tree in Boston in 1765, an act that spread quickly throughout the colonies. Colonists made effigies of British Prime Minister John Stuart, 3rd Earl of Bute, who was deemed responsible for hiking taxes on the colonists. The British government considered liberty poles to be rallying cries for fomenting sedition, and often destroyed them. As Solomon argues, public gatherings and symbolic speech enlarged the public sphere of political participation well beyond the well-educated lawyers, merchants, and politicians who were the main readers of essays and pamphlets. Protest marches and symbolic speech attracted public attention and brought immediate clarity of principle to the wide variety of political arguments made in the essays and pamphlets. The mass gatherings were critical in showing Parliament that opposition was widespread to many of its measures on taxes and trade.
The colonists publicly protested not only the Stamp Act, but also other laws of Parliament such as the Townshend Acts and the Tea Act of 1773. They marched in demonstrations through the streets of colonial towns and gathered for speeches in public squares.
Acts of symbolic speech, like liberty trees and poles, served as powerful protest symbols in colonial America against British tyranny. Depicted here is an illustration from the “Illustrated History of England” by John Cassell titled “The Colonists Under Liberty Tree.” c.1865. (Wikimedia Commons)
Assemblies also took place indoors. Many colonists would gather together in taverns and discuss political tracts and strategies for protesting policies with which they disagreed. “The proper situs of the Assembly Clause, research reveals, is in its birthplace: colonial America’s taverns,” writes Baylen J. Linnekin. He explains that this “tavern talk” led to a public appreciation of the importance of freedom of assembly. His research reveals that “colonial taverns served not just as establishments for drinking alcohol but as vital centers where colonists of reputations great and small gathered to read printed tracts, speak with one another on important issues of the day, debate the news, organize boycotts, draft treatises and demands, plot the expulsion of their British overlords, and establish a new nation.”
Freedom of assembly enabled founding era protesters to come together for a common cause and often to transcend differences. Nicholas S. Brod explains: “Whether in the streets or in the taverns, assembly facilitated a robust conversation among citizens of the founding generation, a force so powerful that it often cut across gender, race, and class.”
Perhaps most importantly, assembly brought about a dramatic expansion of the public sphere of political participation. Essays and pamphlets carried enormous weight in their discussion of colonial rights, but they were aimed at a relatively small number of well-educated lawyers, politicians, and merchants. But liberty trees, liberty poles, effigies, and marches in the street broadened protest into a mass movement that carried a strong message of solidarity to royal authorities.
Freedom of assembly was widely understood as one of the most important individual freedoms possessed by early Americans. Five state constitutions explicitly protected the freedom in their declarations of rights. That led to James Madison, the author of the Bill of Rights, to include this right in the text of what eventually became known as the First Amendment.
Discussion Questions
- Scholar Stephen D. Solomon argues in his book that effigies, liberty poles, and liberty trees were more effective in spreading revolutionary ideas to the broad public than were political essays and pamphlets. What are the advantages and disadvantages that come with reliance on large protest gatherings and symbolic speech?
- How can protest gatherings and symbolic speech bring clarity to otherwise complex ideas of political protest that appear in written form?
- Hypothetical: Imagine James Madison had left the right to peacefully assemble out of the First Amendment and that you are writing to him, asking him to add it to the list of freedoms. Use examples of protests in colonial history to make an argument for why the government should protect the right to assemble.
The Civil Rights Movement
March on Washington for Jobs and Freedom, Martin Luther King, Jr. and Joachim Prinz pictured, 1963. American Jewish Historical Society.
Freedom of assembly took center stage during much of the civil rights movement of the 1950s and 1960s. Protesters took to the streets to oppose the evils of segregation, racial discrimination, and suppression of the right to vote. Such pressures often led to direct conflicts with local and state government officials. Government officials often targeted protesters in this era, arresting them for failing to obtain a permit, trespassing, disorderly conduct, breach of the peace, interference with a public right of way, and disobeying other broad laws.
These protests included the historic March on Washington for Jobs and Freedom, a protest march on August 28, 1963, of more than 250,000 people who gathered together at the Lincoln Memorial in Washington, D.C. The last speaker of that day was Dr. Martin Luther King, Jr., who began his “I Have a Dream” speech saying, “I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.”
But the March on Washington was not the only large assembly of protesters during this tumultuous time. On March 2, 1961, 187 African-American students, many in high school and college, marched from the Zion Baptist Church to the South Carolina statehouse in Columbia. The marchers branched off into groups of about 15 as they approached the statehouse. They were entirely peaceful, singing religious hymns and chanting messages such as “Down with Segregation.”
There were several hundred observers of the march, but there was no violence between the protesters and observers. However, the police threatened the African-American protesters with arrest if they did not disperse within 15 minutes. Instead of dispersing, the protesters continued to sing religious songs and clap their hands.
The police arrested the protesters and charged them with breach of the peace, a vaguely defined law that gave the police wide discretionary powers to break up crowds. A trial court convicted the protesters, a decision upheld by the South Carolina Supreme Court. However, the U.S. Supreme Court unanimously reversed the convictions on First Amendment grounds. “The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form,” wrote Justice Potter Stewart for the Court in Edwards v. South Carolina (1963). “The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.”
Comedian and activist Dick Gregory led another group of protesters in a march in Chicago to protest segregation in education. The group demanded that Mayor Richard Daley fire the School Superintendent Benjamin Willis. Gregory stated the purpose of the march in blunt fashion: “First we will go over to the snake pit [city hall]. When we leave there, we will go to the snake’s house [the mayor’s home]. Then, we will continue to go to the mayor’s home until he fires Ben Willis.”
The group exercised their free-assembly rights to march from city hall to the mayor’s residence. The marchers were peaceful during their protesting, singing and chanting along the way. However, a growing number of onlookers began to become unruly. The police, fearful of possible disorder, ordered the marchers to disperse or face arrest.
When they didn’t disperse, the police arrested Gregory and others, and they were convicted of disorderly conduct. The Supreme Court reversed the convictions. “This is a simple case,” began Chief Justice Earl Warren for the majority in Gregory v. City of Chicago (1969). “Petitioner’s march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment. … There is no evidence in the record that petitioners’ conduct was disorderly.”
However, not all civil rights protesters won their cases when they exercised their assembly rights. For example, a group of students from Florida A & M in Tallahassee marched to a jail to oppose the arrest of some of their protesting colleagues. Some of the students blocked a nonpublic driveway, while others were on the county jail’s premises, so the police arrested them for trespassing. The U.S. Supreme Court narrowly affirmed their convictions in Adderley v. Florida (1966), writing that “the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” The Court rejected the idea that “people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.”
Justice William O. Douglas, however, wrote a dissenting opinion that was joined by three of his colleagues. “We do violence to the First Amendment when we permit this ‘petition for redress of grievances’ to be turned into a trespass action.”
While civil rights protestors might not have won every case, their marches and protests shed light on grave injustices, and forced society to move, however slowly, down a path of progress. As explained in this encyclopedia article: “Calls by African Americans and others for broad societal change culminated in historic pieces of federal legislation that paved the way for greater equality in American society, including the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968.”
Perhaps even more importantly, the various battles over freedom of assembly led to the development of modern First Amendment jurisprudence. It was the vortex of the civil rights movement that led to numerous legal battles—such as those fought by Dr. King, Dick Gregory, and others—that created greater First Amendment freedoms for the rest of society.
The freedom of assembly and other First Amendment freedoms were crucial for the successes of the movement. In the words of the late, great John Lewis, the civil rights movement without the First Amendment would be akin to a “bird without wings.”
Discussion Questions
- Using examples, explain the role that the right of assembly has played over American history in bringing minority political opinion to public consciousness.
- The right of assembly enables dissenters against government policy to make their case to the public. How does protection of the right to assembly for dissenters provide a kind of “safety valve” against public disturbances in the future?
- Consider the general definition “breach of the peace” the Supreme Court of South Carolina used to uphold the conviction against the civil rights protesters. Highlight the part of the definition that you think is most vague, and explain how it could be used to target protected protest.
“In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence . . . it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense.”
“By ‘peace,’ as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society.” 239 S. C., at 343-344, 123 S. E. 2d, at 249.
4. During the civil rights movement, many police officers refused to arrest violent bystanders, and instead allowed them to attack the peaceful demonstrators. Why does the right to peaceful protest also ensure protection from the violent actions of bystanders?
Time, Place, and Manner Restrictions on Protest Activities
About 200 demonstrators gathered outside of Coffman Memorial Union, in University of Minnesota to protest episodes of racism on campus. 6 October 2016. Fibonacci Blue, Wikimedia Commons.
In First Amendment law, regulations that restrict speech based on content are presumptively unconstitutional, and are subject to a high degree of judicial scrutiny. Content-neutral laws, on the other hand, are held to a less stringent form of judicial review.
Government officials often claim that they are not restricting speech because of its content or viewpoint. So, for example, they might say that protesters were arrested because they violated neutral laws of general applicability that apply across the board to all speakers, not because they advocated anti-governmental viewpoints.
Let’s say city officials have a policy that permits any group to apply for a permit to hold a rally or march on the public streets downtown. But the policy provides that any permit for a rally or march has to take place between 6:30 p.m. and 9:30 p.m. This constitutes a content-neutral time, place, and manner restriction on speech, rather than a measure that targets a specific group or its message, because it applies to all groups and it regulates based on time of day to meet broad needs such as flow of traffic during busy times.
“The First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired,” wrote Justice Byron White in Heffron v. International Soc. for Krishna Consciousness, Inc. (1981). The case involved a regulation that banned the distribution of any written materials from anything other than a designated booth during the Minnesota state fair. A group of Hare Krishnas sued, claiming the regulation violated their free speech and religious rights. The Court explained that the limitation was not a content-based limitation on speech, but a reasonable time, place, and manner restriction on speech. This concept is sometimes called “the Heffron Principle.”
When confronted with the specter of significant protests, government officials historically have resorted to two types of measures that ostensibly are time, place, and manner restrictions on speech: (1) curfews and (2) free-speech zones.
Curfews
A fence erected around a gas station in Ferguson, Missouri where thousands of protesters gathered to protest the police killing of MIchael Brown. A violent faction of protesters looted the convenience store and set it on fire. 15 August 2014. Wikimedia Commons.
Government officials sometimes impose curfews when faced with protests that spiral out of control and result in significant property damage, fighting, looting, vandalism, or other forms of conduct that could be characterized as rioting. Curfews are orders that require individuals to be off the streets by a certain time—usually in the evening. Since curfews not only restrict protesters’ right to assemble, as well as the general public’s right to travel, many free-speech advocates believe that government officials should have to provide clear evidence that the restriction is necessary to ensure safety and order before implementing a curfew order.
Officials declare that curfews are an important tool they can deploy, particularly in times of a civil emergency, and do not completely ban First Amendment freedoms. If a curfew goes into effect at 10:00 p.m., protesters can still protest up until that point in time.
In recent times, government officials imposed curfews after the World Trade Organization protests in Seattle in 1999, the 2014 protests in Ferguson, Missouri, after the shooting death of Michael Brown by a white police officer, and the North Dakota oil line protests in 2016. In 2020, many cities imposed curfews following the police killing of George Floyd in Minneapolis. Unfortunately, as scholar Karen J. Pita Loor writes in her Seattle law review article When Protest Is the Disaster: Constitutional Implications of State and Local Emergency Powers, “The declaration of an emergency further expands executive power and aggravates the use of oppressive policing tools.”
Disputes arise over whether recent curfews were imposed consistent with constitutional principles or whether they violated the First Amendment assembly rights of protesters. In June 2020, Black Lives Matter-Los Angeles and other groups sued the cities of Los Angeles and San Bernardino over curfew orders they claimed were overly vague and not narrowly tailored to serving a government interest. According to the complaint, the curfew orders were intended to prevent property damage. However, out of the 2,700 individuals arrested between May 29 and June 2, the vast majority of arrests (2,500) were for curfew violations. Instead of ensuring public safety, BLM argued that the orders had given law enforcement an excuse to target protesters “simply because they engaged in peaceful protest activity during restricted hours.” The plaintiffs dropped the suit the following month when the city ended the curfew.
Discussion Questions
- Sometimes a peaceful protest may include some people whose actions cause property damage and rioting. Is it fair for government officials to punish all with a broad stroke by imposing a curfew rather than trying to punish those individuals who engage in blatantly unlawful activities?
- Government officials often claim that protesters have violated a host of generally applicable laws, such as trespassing or curfew orders. How can neutrally written laws still be applied in a viewpoint-discriminatory manner?
- Hypothetical: You are the mayor of New York City, and after a week of peaceful protests, a pattern emerges where every night a fringe group of individuals begins looting stores and destroying public property. To mitigate unlawful activity, you consider the possibility of a curfew that dramatically limits constitutional freedoms. What kind of evidence would you look for in making your decision? How would you narrowly construct a curfew to be the least restrictive of people’s assembly rights?
Free-Speech Zones
A First Amendment Area at Muir Woods, California. 29 May 2006. Brandt Luke Zorn, Wikimedia Commons.
Like curfews, some government officials have sought to control freedom of assembly by restricting protesters to certain locations. One common method is a free-speech zone. Under a free-speech zone, individuals can engage in First Amendment activities—but only in these respective locations.
Government officials describe free-speech zone policies as content-neutral time, place, and manner restrictions on speech that don’t ban student expression. In a campus setting, university officials have argued that free-speech zone policies are constitutionally acceptable because they merely regulate where the speech takes place as opposed to whether the speech can take place at all.
However, free-speech activists warn that free-speech zones often reduce the message of protesters by relegating them to less desirable locations, and thereby lessening the messages of the protesters. For example, the Foundation for Individual Rights in Education (FIRE) warns: “The idea of a ‘free speech zone’ might sound appealing in theory. But, in practice, these zones function more like free speech quarantines, banishing student and faculty speakers to outposts that may be tiny, on the fringes of campus, (or frequently) both.”
To determine whether a free-speech zone is constitutional, a reviewing court must initially determine whether it was an effort to silence or mute messages, or truly a time, place, and manner restriction on speech. But remember that time, place, and manner restrictions on speech must still be reasonable. An element of reasonableness is that the zone provides an ample alternative to free expression. If the zones are too small or situated in too remote a location, a court will likely deem them unreasonable.
Discussion Questions
- Discuss the idea of “zoning” speech. Do you think your school or university should be able to relegate speakers to specific locations, or do you think the default position should be that most of the campus should be a “free-speech zone”?
- Hypothetical: A group of anti-vaccination students decides to hold a demonstration just outside the university’s health center to protest the distribution of flu vaccinations. The group is widely condemned and accused of endangering student health. The university did not have a free-speech zone prior to their protest, but implements one after a student paper finds that more than 90% of the students support the policy. The new zone is in a section on campus far away from the university’s health center. Do you think the policy violates the anti-vaccination group’s First Amendment rights? Why or why not?
Anti-Protest Laws
In recent years, Americans have taken to the streets in protest as new issues have emerged involving politics and racial justice, including the Women’s March in 2017 in response to the election of Donald J. Trump, the March for Our Lives rally in support of gun control legislation, and Black Lives Matter protests over the tragic killings of African-Americans at the hands of law enforcement. In response, many state legislatures have responded with an array of bills that attempt to redraw the line between legal and illegal demonstrations.
In May 2020, the free expression group PEN America released a report highly critical of the new pattern of legislation. Drawing from research conducted by the Leitner Center for International Law and Justice at Fordham Law School, the group found that between 2015 and 2019, 116 bills targeting protest activity were introduced in state legislatures across the U.S., 23 of which have become law. These bills did not directly prohibit peaceful assembly, but many increased penalties for obstructing highways or trespassing areas around oil and gas pipelines, while others sought to expand the definition of unlawful protest. Defenders of these laws claim they will not affect peaceful protest but will be used solely to stop violent actors who threaten private property and social order. PEN America warns, however, that even legislation that does not explicitly infringe on protest rights can be used to discourage protesters from organizing, for instance by making the risks associated with planning a demonstration too great. This is often referred to as chilling of speech.
At least two anti-protest laws, one in South Dakota and one in Louisiana, have been challenged in court, with only some success. In South Dakota, the American Civil Liberties Union sued the state over three anti-protest laws. The laws were introduced after Native American protesters gathered to demonstrate against the construction of the Keystone Pipeline on native land. One of the laws, the Riot Boosting Act, made it illegal for an individual to “advise, encourage, or solicit other persons” to act violently, regardless if they themselves were involved in a riot. In September, a federal judge wrote that the law failed the so-called Brandenburg test established by the Supreme Court in Brandenburg v. Ohio (1969), which requires evidence that a person’s speech directly advocated imminent lawless action. Without this element, the judge ruled the law violated the First Amendment and granted the ACLU’s request for a preliminary injunction barring the state from enforcing it.
“Sending a supporting email or a letter to the editor in support of a protest is encouraging. Giving a cup of coffee or thumbs up or $10 to support protest is soliciting. Asking someone to protest is soliciting. Suggesting that the protest sign be bigger is advising… each of the examples involve protected speech or expressive activity,” the court explained.
In March 2020, South Dakota Governor Kristi Noem signed a bill that revived portions of the Riot Boosting Act but limited it to individuals who commit violence or damage.
In August 2018, the Louisiana legislature amended a criminal statute prohibiting unauthorized entry onto a property containing critical infrastructure to include a provision barring pipelines. The amendment effectively increased the penalty for trespassing pipeline infrastructure from a misdemeanor, which carries a maximum of one year in jail, to a felony, which carries a maximum of five years in jail. The same month it passed, authorities used the new amendment to arrest a dozen pipeline protesters and one journalist who was covering the demonstration, prompting a lawsuit challenging it under the First Amendment. Their lawyers argued that a law banning protests near pipelines was unconstitutionally vague. With more than 125,000 pipelines running underground throughout the state, including underneath public sidewalks and parks, the lawyers argued the protesters had no way of knowing whether pipelines were present. This gave the police room to apply the law selectively to groups they did not like, including their clients. A state court ruled on the side of protesters, but on the grounds that they had permission to be on the land. As of November 2020, the law has remained intact.
A Native American protester from the Sicangu Nation, “Happy” American Horse, locks himself to construction equipment in protest of an oil pipeline on native lands. 31 August 2016. Desiree Kane, Wikimedia Commons.
In its report, PEN America warns that the long-term ramifications of these bills aren’t just legal but cultural, in that they promote the idea that protests are dangerous. “Even if such bills rarely become law, they promote the view that today’s protests should be viewed through the narrative of criminal disruption, not civic participation,” the authors write.
Discussion Questions
- Americans have assembled in the streets, sidewalks, and public parks since the nation’s founding to protest political and social conditions that they didn’t like. Fringe groups have often gone too far and violated laws during these assemblies. What would account for the sudden wave of state legislation over the last few years that added additional penalties to such actions as trespassing or violations of the public peace?
- Imagine you are a leader planning a protest in South Dakota and the Riot Boosting Act is in effect. What might you worry about in the days leading up to the protest? What sort of behavior might be considered by the police as evidence that you had violated the statute and were thus subject to arrest for encouraging rioting?
- Do you share PEN America’s concern that the pattern of anti-protest laws “promote the view that today’s protests should be viewed through the narrative of criminal disruption, not civic participation”? In a democracy, how might this shift in public perception of protest actually impair assembly rights?
Civil Disobedience
Sometimes protesters intentionally violate a law to pursue their cause. They engage in acts of so-called civil disobedience, a philosophy practiced by Mahatma Gandhi and Dr. Martin Luther King, Jr. During the civil rights movement, protesters engaged in sit-ins, a practice of intentionally violating Jim Crow segregation laws that often prohibited African-Americans from eating at a restaurant lunch counter, studying at a library, or using other public facilities that were reserved for white Americans. Technically, these individuals were trespassing or violating another law or ordinance.
Dr. King addressed the philosophy of civil disobedience in his famous 1963 “Letter From a Birmingham Jail,” which he initially wrote on toilet paper while incarcerated for civil rights protesting in Birmingham, Alabama. King, Ralph Abernathy, and Fred Shuttlesworth, all leaders of the civil rights movement, had been arrested on Good Friday in April 1963 for defying a court injunction prohibiting a protest march. King and his colleagues engaged in an act of purposeful civil disobedience, knowing that they would be arrested for breaking the law.
Eight white ministers published a public letter called “A Call for Unity,” in which they urged civil rights protesters to comply with the law and not engage in such acts of direct civil disobedience. The white ministers wrote: “We recognize the natural impatience of people who feel that their hopes are slow in being realized. But we are convinced that these demonstrations are unwise and untimely.” The white ministers warned that many of the protests were encouraged by “outsiders.”
King wrote “Letter From a Birmingham Jail” in direct response to the white ministers’ “Call for Unity.” He addressed the letter with the salutation “to my dear fellow clergymen.” King rejected the idea of “outsiders” or “outside agitators.” He noted that “injustice anywhere is a threat to justice everywhere.”
He also wrote specifically about breaking what he called “unjust laws.” He explained in poignant language:
“You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may wonder and ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. … I would agree with St. Augustine that ‘an unjust law is no law at all.’”
King explained that an unjust law is immoral and not connected with natural law. Natural law is a term used to describe a system of laws based not on legislation, but by God, nature, or reason. For example, he wrote that segregation could be voted into law but still conflict with core human values. “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty,” he wrote. “I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over it is in reality expressing the highest respect for law.”
He also identified four steps in this process of engaging in direct, nonviolent acts of civil disobedience: (1) the collection of facts to determine the level of injustice; (2) negotiation; (3) self-purification; and (4) direct action. King’s “Letter From a Birmingham Jail” inspired not only countless members of the civil rights movement but also social activists around the globe decades later.
Discussion Questions
- As noted, Dr. King’s “Letter From a Birmingham Jail” has remained influential and inspired social activists in Africa, South America, and elsewhere around the world. What do you think are the reasons King’s message resonates so deeply even decades later?
- Some scholars distinguish between “pure” acts of civil disobedience, which involve breaking the law that they believe is unjust, and other acts of disobedience that involve breaking more general laws unrelated to the target of the protest. Do you see this as a useful distinction?
- Consider the Boston Tea Party, which involved dumping 92,000 pounds of stolen tea into the Boston Harbor. Here is a protest that is celebrated as an iconic moment in American history and yet involved illegal acts. Had the participants simply marched through the city streets, would that have had the same effect? Short of dumping the tea, would there have been any other forms of protest that could have drawn equal attention?
RESOURCES
Multimedia
“Don’t Cage My Speech: A Student Schools His College,” FIRE.
“Jeffrey Rosen on Constitutional Rights and the Coronavirus,” C-Span.org
Law Shelf Educational Media, “First Amendment Rights of Assembly, Petition and Association.”
Freedom Forum, “Multimedia Course on the First Amendment.”
In the News
Natalie Allison, Tennessee legislature cracks down on protesters, making it a felony to camp overnight at Capitol,” The Tennessean, Aug. 12, 2020.
The Editorial Board, “In America, Protest Is Patriotic,” The New York Times, 6/2/2020.
Nora Benavidez, “First Amendment Rights—If You Agree With the President,” The Atlantic, June 1, 2020.
Joseph Cranney, “He told Charleston police, ‘I am not your enemy.’ Then he was handcuffed,” The Post and Courier, 6/1/2020.
Monica Humphries, “Civil Rights Activists from the 1960s share what it’s like for them to see Black Lives Matter Protests Spread Across the Country,” Insider, June 11, 2020.
David L. Hudson, Jr. “Paying for Free Speech: Proposed laws would regulate public protests,” ABA Journal, June 1, 2017.
Ronald J. Krotoszynski, Jr. “States Are Using the Pandemic to Roll Back American’s Rights,” The Atlantic, April 29, 2020.
Related Supreme Court Decisions
Adderley v. Florida, 385 U.S. 39 (1966). The Court by a 5-4 vote affirmed the trespass convictions of several college students who protested the arrest of their colleagues at a local jail. The majority reasoned that the jail was not an appropriate place for such protests.
Edwards v. South Carolina, 372 U.S. 229 (1963). The Court unanimously reversed the breach-of-the-peace convictions of nearly 200 African-American student-protesters who peacefully protested on the South Carolina State House grounds. The Court wrote that the First Amendment “does not permit a State to make criminal the peaceful expression of unpopular views.”
Gregory v. City of Chicago, 394 U.S. 111 (1969). The Court reversed the disorderly conduct convictions of comedian-activist Dick Gregory and others who exercised their free-assembly rights in the city of Chicago. The Court wrote that “[t]here is no evidence in this record that petitioners’ conduct was disorderly.”
Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981). The Court upholds a restriction at a Minnesota state fair that prohibited a religious group from distributing its literature at its desired location. “The First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired,” wrote Justice Byron White.
Whitney v. California, 274 U.S. 357 (1927). The Court upheld the criminal syndicalism conviction of Charlotte Anita Whitney, who merely organized a Communist Party meeting. The opinion is best known for Justice Louis Brandeis’ concurring opinion, which explains both the “safety valve” and “counter-speech” rationales for freedom of speech.
For Further Study
Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, 16 U. Pa. J. Const. L. 949 (2014).
Foundation for Individual Rights in Education, Free Speech Zones, May 24, 2019.
David L. Hudson, Jr., “Chilling Effect Overview,” Foundation for Individual Rights in Education, Feb. 15, 2017.
John D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale University Press, 2012).
John D. Inazu, Unlawful Assembly as Social Control, 64 U.C.L.A. 2 (2017).
International Center for Not-For-Profit Law, “U.S. Protest Law Tracker.”
Karen J. Pita Loor, When Protest Is the Disaster: Constitutional Implications of State and Local Emergency Powers, 43 Seattle L. Rev. 1 (2019).
PEN America, “Arresting Dissent: Legislative Restrictions on the Right to Protest,” May 2020.
Stephen D. Solomon, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press, 2016).
Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press, 2009).
GLOSSARY
Civil disobedience is the refusal of citizens to obey certain laws, demands, orders, or commands of a government without violence. Acts associated with civil disobedience are crimes, such as trespassing, so citizens who engage in them can be arrested and charged.
Curfews are orders that require individuals to be off the streets by a certain time—usually in the evening. Since curfews not only restrict protesters’ right to assemble, as well as the general public’s right to travel, many free-speech advocates believe that government officials should have to provide clear evidence that the restriction is necessary to ensure safety and order before implementing a curfew order.
Symbolic speech consists of nonverbal, non-written forms of communication, such as flag burning, kneeling during the playing of the national anthem, and wearing armbands. Colonial protests against the Stamp Act inspired one of the early examples of symbolic speech—effigies on a liberty tree in Boston in 1765. Civil disobedience is generally protected by the First Amendment unless it causes a specific, direct threat to another individual or public order.
The right to peaceful assembly is one of five freedoms in the First Amendment that together express the necessary components of the democratic process in a self-governing society. The right to peacefully assemble is necessary because it gives people a means to contest government power. But this right isn’t limitless. Government and law enforcement have certain powers to reasonably limit the time, place, and manner of protest to ensure public safety and to arrest lawless actors.
Time, place, and manner restrictions is a judicial test used by the courts to require the government to ensure that any burden on a person’s free-speech rights is content-neutral. Any such regulation must be limited to only, for example, the time of day of a protest, to a public place such as a sidewalk, or putting a reasonable distance (e.g., 30 feet) between a bystander and a police officer to prevent obstruction of an arrest.
Is Protest part of the First Amendment?
The First Amendment protects your right to assemble and express your views through protest. However, police and other government officials are allowed to place certain narrow restrictions on the exercise of speech rights.What amendment allows us to protest?
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. McDaniel v.What does the 1st Amendment say?
The First Amendment provides that Congress make no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.