Academic journal article The William and Mary Bill of Rights Journal

Forging Ahead from Ferguson: Re-Evaluating the Right to Assemble in the Face of Police Militarization

Academic journal article The William and Mary Bill of Rights Journal

Forging Ahead from Ferguson: Re-Evaluating the Right to Assemble in the Face of Police Militarization

Article excerpt

Somewhere I read that the greatness of America is the right to protest for right.1

-Martin Luther King, Jr.


Stark images of protesters squaring off against police officers dominated the evening news for several weeks in August 2014.2 For many around the world, it was almost impossible to reconcile the pictures of police mounted on armored vehicles rolling towards civilian protesters with modern American society.3 At the time, the images appeared to be anything but twenty-first-century America; however, in the months that followed the Ferguson unrest, police and protesters continued to clash throughout the country.4 Baltimore burned;5 the Mall of America shut down;6 and New York City traffic halted as thousands marched across the Brooklyn Bridge.7

Beyond the Black Lives Matter movement, several other national, attentiondrawing demonstrations also have ended with standoffs between police forces and protesters.8 In 2003, police aggressively prohibited thousands of anti-war protesters from even traveling to a rally in New York City.9 The Los Angeles Police Department took full responsibility for injuring 246 journalists during a May Day immigration rally in 2007.10 And, more recently, police physically evicted Occupy Wall Street protesters from Zuccotti Park in 2011.11 Although the police are responsible for protecting public safety, are they equally responsible for protecting constitutional rights? If they are not, then who is? Who watches the watchmen?12

Founded on protest, revolution, and liberty,13 America has endorsed the freedoms of speech, press, and assembly as bedrock values of our society.14 Protests, however, do not easily fall within one of the delineated First Amendment buckets-they are a combination of physical presence, symbolic speech, and verbal chants. As one of the most organic and effective avenues to demonstrate discontent, however, protests are both intrinsic to American democracy and the natural products of exercising one's First Amendment rights.15

As such, the right to protest must be protected, especially as police tactics become more aggressive due to militarization. Given the increased occurrence of public protests,16 police forces must balance the protesters' constitutional rights with the police's responsibility to ensure public safety. Recent events show how this balance has sometimes fallen too heavily toward public order at the expense of First Amendment freedoms.17 The presence of militarized police at public demonstrations can create a chilling effect that unconstitutionally infringes upon individuals' constitutional rights of speech and assembly.

This Note argues that, in the face of police militarization, the right to assemble must be re-evaluated and reclaimed as an affirmative constitutional right that protects public protests. Part I provides a brief history of police militarization in the United States, explaining why it is a newfound threat to the right to assemble. Part II analyzes how militarization affects public protests using the events of Ferguson as a case study. Part III argues that the twentieth-century Supreme Court has misinterpreted the freedom of assembly by examining the historical origins of the Assembly Clause. Finally, Part IV provides three different constitutional solutions for how the Court may use the right to assemble to protect public protests from the negative effects of police militarization.


A. Enacting the Posse Comitatus Act

Fearful of tyranny, the Founding Fathers outlined various fundamental rights intended to prevent the United States from becoming a police state.18 Concerned that a military force threatened basic fundamental liberties such as those outlined in the First Amendment, New York proposed a distinct constitutional amendment that would prohibit a standing army.19 Although this idea was discussed at length by Brutus in the Anti-Federalist Papers,20 the prohibition against a standing army was not an included safety valve. …

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