“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.”
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 inconvenient. Last 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.
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.
Trump Doesn’t Like What He Sees in the Crystal Ball
Besides delaying the election, what else could alter his political trajectory?
Bret Stephens: Gail, some of our readers may not know that, in addition to all of your journalism at The Times, you’re also the author of several distinguished works of history. Put on your historian’s hat and tell us what you think of Donald Trump’s tweet suggesting we delay the election.
Gail Collins: Bret, I probably know more about the presidency of William Henry Harrison. But I’m pretty sure our readers aren’t having trouble figuring out how to react to a president, trailing in the polls, suddenly suggesting we put off voting.
Bret: I was impressed and pleasantly surprised by the Op-Ed we ran from Steven Calabresi, a law professor and one of the founders of the conservative Federalist Society, who called Trump’s tweet “fascistic” and “itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.”
Gail: You told me once you thought Trump was too cowardly to actually try to pull off a coup. I can’t tell you how much comfort I’ve been taking from that thought.
So — just checking — is that still your opinion?
Bret: Still is. What I think this tweet tells us is that Trump knows in his heart that he is likely to lose in November. He’s laying the groundwork not for a coup but for an excuse, both for himself and for his followers. It creates a mythology to explain defeat, attack Joe Biden and keep the Trump family relevant in the Republican Party. The fact that he’d pull a stunt like this is another reason it’s so important that he lose in a landslide in November.
Gail: Get your act together, Georgia. And I’m looking at you, Arizona.
Bret: In the meantime, Gail — and on a less depressing note — I was deeply moved by the funeral service and eulogies for John Lewis. I’m sorry I never had a chance to meet him. Did you know him?
Gail: No, but my impression was like that of a lot of people I’ve met from the civil rights movement. They were ferocious about the fight but very humane about the people they were fighting against. Which is hard to do when you’re talking about folks swinging bats or refusing to let your children order ice cream at the segregated soda fountain.
Noticed there was only one president missing from the funeral …
Bret: … as he was missing from the funeral of John McCain. Grace is to Trump what garlic is to vampires.
Gail: Wow, I’d like to see that on his tombstone someday.
Bret: Speaking of grace, it’s worth watching George W. Bush’s eulogy for Lewis, which got the standing ovation it deserved. Not just because of its eloquence, but because it was such a vivid demonstration that policy differences should be no bar to admiring the character of our political opponents. One of the many reasons Lewis deserved those magnificent tributes is because he operated from convictions of radical love. He saw humanity even in those who refused to see humanity in him.
Gail: Totally agree. And seeing all the ex-presidents there, as at the McCain funeral, reminded you of a time when our national leaders, for all their faults, knew how to behave like civilized people.
Bret: All things we could stand to learn again, and maybe will in a Biden administration. Speaking of which, any thoughts about Karen Bass as a veep nominee? Lots of buzz around her.
Gail: Nothing buzzier. Her stock keeps rising because her House colleagues think so highly of her. She knows how to get things done and her colleagues like working with her. The Democratic ticket would certainly win the Likability Ribbon.
Bret: My main criterion for a running mate, other than being qualified to be president, is to bring political strength to a ticket, and possibly flip a state. If I have any objection to Bass, it’s that, as a Californian, she doesn’t do this for a Biden ticket. And she might hurt him in Florida, on account of her participation, back in the 1970s, in the pro-Castro “Venceremos Brigade.” So many key elections in the Sunshine State seem to split 50-50, with one side winning by a hair, so there’s not a lot of room for error.
Gail: Good point, but I am sorta getting tired of the Just-Make-Florida-Happy theory of politics.
Bret: I know the polls look good for Biden now, but he can’t be complacent. He has to run his campaign as if the whole thing is going to turn on just a few thousand votes in a few key states — and none more key than Florida. Trump is going to attack Biden and whoever emerges as his running mate in the nastiest way possible, while we are in the midst of the worst economic crisis in living history. If ever there was a political race that matters, it’s this one.
Gail: Well, a huge number of Americans agree with you, not to mention most of the rest of the world. Maybe we all get together some night — on Zoom, of course. We could close our eyes and envision the Donald Trump Concession Sulk. Then we will clear our minds and go back to worrying obsessively.
Bret: The moment we read the tweet, “Just ‘congratulated’ ‘president-elect’ Joe Biden (total loser). You’ll miss me VERY SOON!!!” is the moment our long national nightmare will finally be over.
The George Wallace We Forgot
Mr. Lewis charged Mr. McCain and Sarah Palin with “sowing the seeds of hatred and division” in their fervently red-meat rallies, not unlike “a governor of the State of Alabama named George Wallace” whose race-bating rhetoric
.. Mr. Lewis’s authority to chastise Mr. McCain comes not from his Bloody Sunday stand on the Edmund Pettus Bridge in Selma, Ala., in 1965, but rather from his subsequent record on the hustings. His mettle was tested not only in Selma but also in three tough campaigns, characterized by tactics of personal destruction.
.. Peaceful marchers found themselves shadowed by a volunteer bodyguard of shotgun-wielding black militants, and a group known as the Atlanta Separatists was demanding that all whites be expelled from the civil rights leadership.
.. Things came to a head at SNCC’s convention in May that year, when late-night, back-room maneuvering elevated Stokely Carmichael to the chairmanship, ousting Mr. Lewis. Whites were purged from the organization, and its longtime white supporters were vilified. Carmichael’s successor, H. Rap Brown, changed the group’s name to Student National Coordinating Committee and directly advocated violence.
.. In 1982, Mr. Lewis, along with other newly elected black Atlanta city councilmen, faced sound trucks rolling through their neighborhoods accusing them of race treason for not supporting a major road project favored by Mayor Andrew Young. Mr. Lewis stood his ground.
..In his first bid for Congress, in 1986 .. .. He fought his way into office by outworking his opponent and — eloquently enough — outdebating him. He brought to Congress not only a visceral understanding of what it’s like to be clubbed into unconsciousness, but also a deep familiarity with the damage inflicted by take-no-prisoners political campaigning.
.. As a circuit court judge in the 1950s, Wallace was respectful toward blacks, and as a legislator from 1947 to 1953, he was a moderate. In 1948, when Strom Thurmond led the Southern delegations out of the Democratic convention to protest the party’s pioneer civil rights plank, Wallace stayed in his seat. Though no fan of the plank, he was yet more Democrat than demagogue, and was instrumental in rallying the other Southern alternate delegates to save the convention’s quorum, and pass its platform.
.. He might have carried a tolerant message into the Alabama governor’s mansion in 1958, but he lost the race after spurning the support of the Ku Klux Klan (which then backed his primary opponent, John Patterson)
.. Sadly for Wallace’s state, his region, his nation and himself, he did not respond as John Lewis did after his defeat by Carmichael. Mr. Lewis, whenever confronted with calls to divisiveness, chose to redouble his commitment to reason and tolerance. After his loss to Mr. Patterson, Wallace is said to have turned to an aide and declared, “I was out-niggered … and I’ll never be out-niggered again.”
.. In the final debate of this presidential campaign, faced with John McCain’s demand that he repudiate Mr. Lewis’s analogy, Barack Obama said he didn’t think his opponent was another George Wallace, and that sounds reasonable if you assume Mr. Lewis was referring to Wallace the vile racist, not the more tragic Wallace, the one-time straight campaigner who bartered conviction for expedience when he thought a raw appeal to division could gain him crucial votes... Mr. Lewis might be deemed generous in wishing on no other member of his profession the harrowed look I witnessed in George Wallace’s eyes as he struggled up off the floor in Boston and beheld what a hell he’d wrought.
David Axelrod Interviews John Lewis (Episode 162)
Could the Civil Rights Struggle survive without Journalism? (16 min)
They tried to destroy the record. They beat the reporters first.
When people saw footage of Bloody Sunday, they demonstrated and demanded Civil Rights.