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Proposed regulations for protests run up against First Amendment concerns

February 24, 2017 by Chris Calabrese


Rally for Refugees at Reagan National Airport (credit: Geoff Livingston)

Since the election of President Trump, protests have sprung up across the country, culminating in the last few weeks with the Women’s March and the “airport protests.” By most accounts, the protests were lawful, winning praise and visits from elected leaders.


While many have viewed these protests as examples of “democracy in action,” not everyone agrees. Some have insinuated that many protesters have been paid to take action; others believe they have been disruptive and inconvenienced the everyday lives of innocent bystanders. This criticism was amplified by recent violence at the University of California in response to a visit from the Breitbart provocateur Milo Yiannopoulos.


Now, the debate is heating up with the proposal of laws in several state legislatures that would establish new regulations for public protest. For example, in North Dakota, if a driver were to accidentally kill a protester who is blocking traffic, the driver would not be charged with homicide. In North Carolina, heckling a politician would result in a fine. And in Minnesota, protesters charged with obstruction of justice could face no less than a year of jail time. Are these laws, and others like them, constitutional?


The right to protest has always been protected by the First Amendment, which states that “Congress shall make no law … 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.”


A literal reading might lead one to conclude that people have the right to protest wherever and whenever they want. But the Supreme Court has given some discretion to the government, as they are allowed to make laws concerning the “time, place and manner” of a public protest.


This concept originated in the case of Grayned v. City of Rockford. Richard Grayned was arrested and charged with violations of anti-noise and anti-picketing ordinances in Rockford. Grayned and his fellow demonstrators in support of racial equality argued that they were an acceptable distance from a local school, and did not interrupt classes; the only folks making disruptive noise, they said, were the police. On the other hand, the police argued that hundreds of students watched the protest through windows, ending up late to class or skipping class entirely. This, they said, was sufficient reason to stop the protest.


When the Supreme Court heard the case, all nine justices held unconstitutional the anti-picketing ordinance, which banned nearly all protests—aside from labor disputes—within 150 feet of a school. The justices reasoned that the ordinance discriminates against non-labor peaceful demonstrations.


But Justice Thurgood Marshall went further in writing the majority opinion. He attempted to define what restrictions government can place on protest; indeed, he is the author of the “time, place, manner” formulation.


Justice Marshall used the example of two people who want to hold two parades at the same time, on the same street. Clearly, a city has the right to give a permit to only one group, in order to prevent the disruption and chaos of two parades. Likewise, if people wish to hold a parade on a busy street during rush hour, a city could forbid the parade on the grounds that it would cause too many traffic problems. Marshall’s main assertion was that government has the right to enact “reasonable” restrictions on the administration of a protest. But such restrictions must apply equally to everyone.


This framework has been tested by several different cases since Grayned. For example, according to Cox v. Louisiana, a city may attempt to shield its judicial system from popular influence by restricting how close protesters can stand to a courthouse. Noise restrictions, too, are acceptable, according to Ward v. Rock Against Racism. Cities are also within their authority to require a permit; this enables officials to determine how many security staff will be needed, and to ensure that a rival group will not also be protesting in close quarters. While some believe that these restrictions are an unacceptable violation of the First Amendment, the Court has tried to strike a balance between free speech and public order.


The so-called “airport protests” of late last month, especially those in Denver, highlight the complexities of the issue.


Denver Police Commander Tony Lopez told protesters that they should “put all the signs away that have anything to do with First Amendment expression, political message.” He went on: “Based on legal advice we are getting at this time, from the city attorney, what’s being displayed, is a violation of airport rules and regulations.” One protestor responded by asking whether he was allowed to hold up the Constitution. Lopez said that would qualify as a First Amendment sign and be considered illegal.


Airport rules also state that protesters are required to obtain a permit at least a week before a protest. Acting within hours of President Trump’s executive order on refugees and foreign travel, they were not able to do so. Still, the airport is allowed to maintain reasonable regulations, as the Court previously ruled that airports are considered nonpublic forums (Airport Commissioners v. Jews for Jesus).


While many of the state bills may never become law, it is possible that one or more of these rules, or similar ones, will reach the Supreme Court.


Several groups have rushed to rebuke these laws. Chip Gibbons of the Bill of Rights Defense Committee said one such law in Minnesota “is most likely unconstitutional, and if passed will have a chilling effect on speech as individuals will worry if they can be sued by the government for exercising their constitutional rights.”


Speaking to the progressive blog ThinkProgress, Lee Rowland of the American Civil Liberties Union said:

This is a marked uptick in bills that would criminalize or penalize protected speech and protest, and every person should be alarmed at that trend. … We should also be alarmed by the attitude they betray, which is that when Americans get out into the streets and make their voices heard—recently, in record numbers—their elected representatives’ response is not to listen to those concerns but to attempt to silence and criminalize them.

Chris Calabrese is an intern at the National Constitution Center. He is also a recent graduate of St. Joseph’s University.


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