Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly

By Haj, Tabatha Abu El- | Missouri Law Review, Fall 2015 | Go to article overview

Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly


Haj, Tabatha Abu El-, Missouri Law Review


I. INTRODUCTION

The current wave of civil rights demonstrations in response to police killings began on August 9, 2014, after Darren Wilson, a white police officer, fatally shot Michael Brown, an unarmed African-American eighteen-year-old, in Ferguson, Missouri. (1) Outraged by the incident and by the fact that the body was left on the street for four-and-a-half hours--an image that went viral on social media--members of the community took to the streets. (2) They went out without securing the necessary permits and without visible connection to established local civil rights organizations. The mainstream media quickly framed the events in Ferguson as yet another urban riot in the face of perceived police abuses. (3) The story told over social media by those on the streets painted a much more complicated picture. (4) The mainstream press eventually caught on, and the once unknown City of Ferguson became a household word.

While the events in Ferguson were the starting point, it was the failure of a New York City grand jury to indict the police officer responsible for the death of Eric Gamer that ultimately galvanized a movement, after sparking demonstrations in New York City and solidarity protests around the nation. (5) Eric Gamer, like Michael Brown, was an unarmed black man who died at the hands of police; Gamer's tragic death resulted from a police chokehold that was caught on videotape. (6) Among the many slogans to come out of those protests, the phrase "Black Lives Matter" has come to define the movement. (7)

Since the incident in Ferguson, Black Lives Matter activists have publicized on social media the deaths of people of color at the hand of police officers in city after city, and each incident has triggered protests--a few large, many unpermitted. (8) Most recently, the death of Freddie Gray, a twenty-five-year-old black man who died after suffering fatal injuries while in police custody, led to large demonstrations in Baltimore. (9) The city was put under a curfew for over a week after the governor of Maryland declared a state of emergency and called out the National Guard in response to riots that convulsed the city for several days. (10)

While there is no question that some of the participants in the Baltimore crowds, like those in Ferguson, crossed the line between constitutionally protected and unlawful assembly, angry and leaderless crowds that form to respond to perceived abuses of governmental power are always disruptive. (11) More importantly, the Founders fully understood this when they singled out assembly for First Amendment protection.

The Black Lives Matter movement, therefore, provides a unique opportunity to revisit the Constitution's protection of a "right of the people peaceably to assemble." (12) Even more than the Occupy movement, the recent protests against the frequency with which unarmed African Americans die as a result of police officers' actions illustrate the serious consequences that flow from the Supreme Court's failure to appreciate that the First Amendment identifies a particular form of conduct--public assembly--for separate constitutional protection. (13) The fact that the Black Lives Matter protests often bear little resemblance to our idealized conceptions of public discourse--as reasoned disquisitions on difficult choices of public policy--underscores why the Founders recognized the need for a separate clause to protect assembly and the process of redressing grievances. It illustrates why the Supreme Court's contemporary jurisprudence, which collapses the right of assembly into the freedom of speech, is thoroughly misguided--leaving protestors feeling that First Amendment protections are weak and lower courts confused about how to decide what level of public disruption the Constitution requires officials to tolerate. In sum, the recent protests provide a unique opportunity to consider why outdoor assembly remains a valuable form of political participation, even in the digital age, and why it deserves more robust constitutional protections. …

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