The Whole Concept of ‘Unlawful Assembly’ Is a Mess

“Unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but what qualifies?

Recent weeks have produced a lifetime’s worth of haunting images. Some of them everyone has seen: black-clad “agents” hustling citizens into unmarked vans, “counterdemonstrators” with automatic weapons dogging Black Lives Matter protests. Others I have seen in person: on a recent trip to Portland, Oregon, groups of mothers marching in front of a federal courthouse to protect protesters who had been gassed and beaten during previous demonstrations; on a stroll through a neighborhood park in my small hometown of Eugene, Oregon, a dozen masked “security guards” with assault rifles offering protection to anti-police-violence protesters.

And the backdrop to all these sights is the indelible image of a flag-draped coffin bearing the body of Representative John Lewis on his final trip—this one over a path strewn with rose petals—across the Edmund Pettus Bridge, in Selma, Alabama.

Lewis’s cortege recalled a scene from half a century ago—one that echoed strangely amid the alarms and cries of this haunted July.

On Sunday, March 7, 1965, Lewis and Hosea Williams led a peaceful crowd of some 600 marchers across the Edmund Pettus Bridge. It was a march for voting rights—but it also was a protest against police violence, in particular the police killing of a 26-year-old man, Jimmie Lee Jackson, who was beaten and then shot twice in the back during a voting-rights march on February 18 of that year.

That March day, on the other side of the bridge stood hundreds of Alabama state troopers, sheriff’s deputies, and mounted “possemen” (white locals “deputized” by Dallas County Sheriff Jim Clark). They were armed with rifles, tear gas, batons, and cattle prods. “It would be detrimental to your safety to continue this march,” Alabama State Police Major John Cloud announced. “And I’m saying this is an unlawful assembly. You are to disperse.”

The subsequent violence became known as “Bloody Sunday,” and the shock waves it sent across the country transformed the national debate about voting rights for Black Americans.

The words that echo in 2020 are “This is an unlawful assembly.” This summer, police in Oregon have been “declaring riots” almost every night. And Oregon is not even on the cutting edge: The mayor of one southern hamlet, Graham, North Carolina, recently “suspended” all protests, out of a professed fear that demonstrations against Confederate monuments would lead to violence.  Similarly, the troopers who brutalized the crowd of unarmed men, women, and children on Bloody Sunday saw themselves as enforcers of the law. But, textually, the words unlawful assembly embody a tension, even a contradiction—because the First Amendment, in its very terms, protects “the right of the people peaceably to assemble.” So “unlawful assembly” is like “illegal writing” or “forbidden religious exercise”: There surely may be such a thing, but, in each case, the burden has to be on the authorities to explain why this assembly, this writing, this religious exercise is an exception to the broad protection afforded to these important political rights.

By the logic of unlawful assembly, John Lewis had it coming. He and the marchers had gathered without permission. They had blocked a highway. Told to go home, they stayed. And violence followed. If you want to get technical, the marchers didn’t commit the violence—it was committed by the police and the local white toughs who hung around the fringes of the march. But the marchers had gathered in a place where the police didn’t want them. As one local white official explained to Martin Luther King Jr. in the aftermath of the march, “Everywhere you have been, there has been violence.”

Police and demonstrators during the march on the courthouse in Selma, Ala. on March 13, 1965. (AP)

Some scholars have argued recently that Americans have lost sight of “peaceable assembly” as an important constitutional right. One of them is Tabatha Abu El-Haj, a professor at the Drexel University Thomas R. Kline School of Law, whom I spoke with last week. Abu El-Haj has written extensively about the First Amendment and the right to assemble in particular, including a 2009 article called “The Neglected Right of Assembly.” Abu El-Haj explained to me that while England maintained a relatively tight leash on popular assemblies, the experience of the American Revolution convinced early Americans of the importance of “the people out of doors” as part of citizenship and political participation. Marches, open-air meetings, and protests were routinely held on public property during the 18th and 19th centuries. Not until 1914, in fact, did New York, by then a city of 2 million, even begin to require permits for these marches.

Abu El-Haj said that contemporary First Amendment doctrine has concentrated on freedom of speech, treating the right of groups to assemble as merely a subset of the right of individuals to speak. That’s not in accordance with the words of the Constitution, she pointed out. “Courts should take a textual approach and thus disaggregate peaceable assembly from freedom of speech,” she said.

Of course, even in the heyday of the right to assemble, governments had the power to shut down riots. But the threshold for “reading the Riot Act” was the risk of serious violence—something equivalent to today’s Brandenburg test for incitement to crime. That formulation, announced by the Supreme Court in the 1950s, empowers the government to punish speech as incitement only when it is “directed to and likely to cause imminent lawless action.” By general agreement, lawless action means something more serious than jaywalking, peacefully blocking sidewalks and streets, or even cursing and taunting police.

In addition, Abu El-Haj said, crowds should not be declared “unlawful” unless they are violent and they refuse to disperse after a clear warning. She cited as examples the protests in Philadelphia in late May and early June, in which some marchers burned police vehicles and set fire to or looted stores. “That’s a different situation from much of what we have seen in the last few weeks—largely peaceful protests with violent behavior at the fringes,” sometimes by people who “are there to disrupt the protest,” she said.

Abu El-Haj’s words were echoed by John Inazu, a professor at the Washington University at St. Louis School of Law, who recently wrote an article decrying the overuse of unlawful-assembly laws as “social control.” Over time, he argued, local governments have lost sight of the idea that protest is presumptively protected, and have rewritten unlawful-assembly laws to permit the government to shut down even peaceful protests when they find them inconvenientLast year in The Atlantic, Inazu noted:

Local officials too frequently end protests prematurely or move them to distant locations where they will be less effective. Lawmakers overregulate nonviolent groups that resist majoritarian norms. And many Americans cede too easily to the demands of conformity rather than pursuing and protecting alternative visions of society.

In an interview last week, Inazu told me that many local officials also pay no political or legal price for stopping protests prematurely. “The ability to overpolice or shut down the protests when they should be allowed to continue really advances the objectives of local government.”

Courts have done little to intervene in these choices, he said; there is “virtually no [legal] doctrine on the right of assembly.” Courts should require local governments to show that real disorder is imminent, rather than allowing premature shutdowns, he argued. “Local governments have to take some degree of risk” of disorder before eliminating protests, rather than using unlawful assembly as a phrase meaning “inconvenient.”

The withering of the right to assemble may flow from public attitudes, which have not been particularly tolerant of protest and have become far less tolerant recently. That’s the view of Timothy Zick, a professor at the William & Mary Law School, who has been writing for a decade on regional variation in interpretations of the First Amendment, including local regulation of where people may assemble. Zick notes that many localities now levy hefty charges against protesters to pay for the cost of policing them; many people, he says, find that a reasonable idea, even though it may make even the most determinedly nonviolent citizens, faced with potentially ruinous costs, forswear any public activity. And others have suggested that protests at night are suspicious in themselves. Why is that? Zick asks. “The First Amendment applies when the sun goes down. It doesn’t take a nap.”
Last month, the former Republican National Committee chair Michael Steele suggested that the Portland protesters should prevent criticism from Donald Trump by moving their protests away from the federal courthouse.
Groups of mothers form a wall to protect protesters in Portland, Ore. in July (Alex Lourie / Redux)

Clever, eh? If the government abuses you, go somewhere you won’t make the government mad. That idea, to my mind, stands the ideals of free speech and assembly on their head. The federal courthouse—where federal power is publicly displayed and exercised—is the kind of place where protests, by logic and history, are supposed to take place. When the people assemble in such a place, the government should not greet them right away with militarized threat of force. It should not ever remove them unless it has first made a serious effort to protect their right to be heard—and to separate the violent from the peaceable. And government officials, such as the president and the attorney general, should not be in the business of slandering and misrepresenting the majority of the peaceable.

Demands that protesters “denounce violence” also miss the point. Emerson Sykes, one of the American Civil Liberties Union attorneys challenging the protest ban in Graham, North Carolina, points out that the protests in America represent “a historic moment”—a challenge to ingrained brutality and racism in our police and justice systems. Protesters who themselves commit no crimes have the right to focus on that aim; ritual self-purification is an inappropriate demand—particularly in 2020. A government that itself cannot denounce neo-Nazis invading state capitals has no standing to demand that others apologize for the sins of third parties.

And that takes me back to Selma. It seems like distant history. Yet today, in America, people are in the street fighting for the very same things that the marchers on Bloody Sunday wanted—an end to police violence and free elections. The real scandal is that these basic values remain under siege more than half a century after blood ran on that Alabama bridge.

One Thing Donald Trump Would Like Is Freedom From the Press

More than any president in living memory, Donald Trump has conducted a dogged, remorseless assault on the press. He portrays the news media not only as a dedicated adversary of his administration but of the entire body politic. These attacks have forced the media where it does not want to be, at the center of the political debate.

Trump’s purpose is clear. He seeks to weaken an institution that serves to constrain the abusive exercise of executive authority.

.. He has described news organizations as “the enemy of the American people.” He has routinely called reporters“scum,” “slime,” “dishonest” and “disgusting.”

.. Rosen observed that the history of right-wing attacks on the media

extends back through Agnew’s speeches for Nixon to Goldwater’s campaign in 1964 and winds forward through William Rushertalk radio, and of course Fox News, which founded a business model on liberal bias.

Trump is not just attacking the press but the conditions that make it possible for news reports to serve as any kind of check on power.

.. From undue influence (Agnew’s claim) to something closer to treason (enemy of the people.) Instead of criticizing ‘the media’ for unfair treatment, he whips up hatred for it.

.. Trump has some built-in advantages in his war on the media. Confidence in the media was in decline long before Trump entered politics

..  in September 2017 that 37 percent of the public had a “great deal” or “fair amount” of confidence in the mass media, down from 53 percent in 1997.

.. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave.

.. Insofar as Trump succeeds in “undercutting the watchdog, educator, and proxy functions of the press,” they write, it

leaves the administration more capable of delegitimizing other institutions and constructing other enemies — including

  • the judiciary,
  • the intelligence community,
  • immigrants, and
  • members of certain races or religions.

.. Trump is signaling — through his terminology, through his delegitimizing actions, and through his anticipatory undercutting — that the press is literally the enemy, to be distrusted, ignored, and excluded.

.. motivate it to want to call out the changing norms that it sees around it, and to defend the role of important democratic institutions when they are attacked. But when the press is itself one of those institutions, it finds itself a part of the story in ways that it is unaccustomed to being, and it has to weigh the potential loss of credibility that might come with an aggressive self-defense.

.. “The best way for the press to react to Trump’s undemocratic behavior is to continue trying to do their jobs the best they can,”

.. Ladd specifically warned against “reacting to Trump by becoming more crusadingly anti-Trump.”

Trump has successfully “put the mainstream media in a difficult position,” according to Geoffrey Stone, a law professor at the University of Chicago:

If the media directly address the accusations of fake news, they ironically run the risk of dignifying the accusations. But if they ignore the accusations, they miss the opportunity to prove their professionalism to those who have grown skeptical.

.. Trump’s disdain for the First Amendment is an integral part of a much longer series of developments in which both parties have demonstrated a willingness to defy democratic norms, although the Republican Party has been in the forefront.

For a quarter of a century, Republican officials have been more willing than Democratic officials to play constitutional hardball — not only or primarily on judicial nominations but across a range of spheres. Democrats have also availed themselves of hardball throughout this period, but not with the same frequency or intensity.

.. Fishkin and Pozen cite the work of Mark Tushnet, a professor at Harvard Law School, to define constitutional hardball as “political claims and practices”

that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings. Constitutional hardball tactics are viewed by the other side as provocative and unfair because they flout the ‘goes without saying’ assumptions that underpin working systems of constitutional government. Such tactics do not generally flout binding legal norms. But that only heightens the sense of foul play insofar as it insulates acts of hardball from judicial review.

Republicans on the far right, in particular, Fishkin and Pozen write, have been willing to engage in constitutional hardball because they are drawn to “narratives of debasement and restoration,” which suggest

that something has gone fundamentally awry in the republic, on the order of an existential crisis, and that unpatriotic liberals have allowed or caused it to happen.

The severity of the liberal threat, in the eyes of these conservatives, justifies extreme steps to restore what they see as a besieged moral order.

.. As with so many things about President Trump, it strikes me that he didn’t start the fire. He got into office because it was already burning and now he’s pouring on gasoline.

.. Accusations that the press has a political agenda can, perversely, help create an agenda which is then said to corroborate the accusations.

.. Pozen described Trump’s denunciation of the press as “the culmination of several decades of comparable attacks by media pundits, such as Rush Limbaugh” and he argues that Trump’s calls

to lock up one’s general election opponent, encouraging online hate mobs, lying constantly, attacking the press constantly, contradicting oneself constantly, undermining the very idea of truth are individually and in common potentially profound threats to the integrity and quality of our system of free expression.

 

What happens when a party becomes unmoored from the truth and the American creed

a willingness to tolerate falsehoods and attacks upon democratic norms and the American creed, as though these are matters of style.

.. “conservatism” these days has become (both in the eyes of liberals who think conservatism is interchangeable with “right-wing extremism” and those claiming the conservative mantle) a cartoon version of itself.

.. much of the cheering for “conservative” ends skips over the details, disregards the substance and ignores context — none of which are indices of conservative thought.

.. Means that do not respect values that conservatives used to hold dear (e.g. free markets, federalism, family unity) are no cause for celebration.

.. if conservatives think Trump’s accomplishments are conservative, then conservatism has morphed into something foreign to those who spent decades advocating a governing philosophy rooted in

  • opportunity for all,
  • civility,
  • federalism,
  • the rule of law,
  • free markets and
  • limited but vigorous government.

.. Trump’s right-wing apologists would have us treat Trump’s racism, attacks on democratic norms, dishonesty and contempt for independent democratic institutions as matters of style. “Well I don’t much like his tweeting but …” “Well, we don’t really agree that there are good people on the neo-Nazi side.” “Well, we all knew he was a bit of a liar.

.. Call this the “other than that, Mrs. Lincoln, how did you enjoy the play?”  syndrome

.. If one puts racism so far down the list of priorities that it barely deserves a raised eyebrow — or worse, requires some fudging to cover it up — one has become an enabler of racism. If one brushes off repeated, deliberate falsehoods because they are embarrassing, one becomes an enabler of lying, a handmaiden to attacks on objective truth. These are not inconsequential matters; they are not style issues. Truth-telling and repudiation of racism are or should be top principles both for America and for conservatism.

.. Put on top of that the willingness to prevaricate (Well, if we say it was “shithouse” and not “shithole,” we can say Sen. Dick Durbin was lying!) and you have an assault on principles that are the foundation for our democracy and for conservatism (or what it used to be)

.. The assertion that we can disregard everything the president says so long as it does not become cemented in law misconceives the role of the presidency and ignores his oath.

.. His oath was not to produce tax cuts or regulatory rollbacks. He swore an oath to preserve, protect and defend the Constitution, including reverence for the First Amendment, an independent judiciary and equal protection under the law.

.. The party and Trump apologists who brandish the conservative moniker, we fear, have lost their way. They’ve ceased to think deeply about the substance of policy and its effects, but worse, they have inverted their once-claimed priorities. What is most important — democratic norms and objective truth — is now for too many an afterthought, and Trump’s evisceration of the same, mere differences in style. We cannot abide by this, and neither should Americans of whatever political stripe.

Trump vs. the First Amendment

the hallmark elements of the president’s political style:

  • ignorance,
  • stupidity,
  • pettiness, and
  • malice.

.. the FCC does not license networks or cable channels. NBC, CBS, ABC, Fox News, etc., do not have FCC licenses to review or revoke. The FCC licenses individual stations.

.. Bill Mitchell, the Trump sycophant whose comprehensive lack of self-respect makes Paul Begala look like Cincinnatus, went on to argue that print publications such as Vanity Fair and the Washington Post should have their licenses revoked, too

There is no such thing as a newspaper license in the United States. There is the First Amendment.

.. Gutting the First Amendment is one of the top priorities of the Democratic party, which seeks to revoke its protection of political speech — i.e., the thing it’s really there to protect — so that they can put restrictions on political activism, which restrictions they call “campaign-finance reform.”

.. They abominate the Supreme Court’s solid First Amendment decision in Citizens United, a case that involved not “money in politics” but the basic free-speech question of whether political activists should be allowed to show a film critical of Hillary Rodham Clinton in the days before an election. (Making a film and distributing it costs money, you see, hence “money in politics.”) They lost that one, but every Democrat in Harry Reid’s Senate — every one of them — voted to repeal the First Amendment.

.. Right-wing populists, too, are an illiberal bunch

.. They are repeating the progressives’ mistake: imagining what their guy could do with vast new antidemocratic powers while never bothering to consider that the other side’s guy is probably going to get in there one of these days and enjoy the same powers.

.. Free speech is extraordinarily unpopular on college campuses, and California has just enacted a flatly unconstitutional law that would empower the government to put people in jail for failing to use the preferred pronoun of a transgender person.