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.

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A Former Baltimore Cop Explains Why the Department Targets Black Men

This past year has seen an enormous amount of attention paid to the toxic divide between police departments and the poor, black communities they serve. One thing we’ve learned is that tribal loyalty often prevents police officers from criticizing each other or their departments publicly—and at least sometimes, they lie when one of their own faces charges of misconduct. That’s why the recent emergence of Michael Wood Jr., a retired Baltimore cop, as a critic of law enforcement culture landed with impact: His voice was the relatively rare one that spoke with the knowledge of an insider but the unforgiving skepticism of an outsider.

In this video, you’ll meet Wood while he drives the streets of the city where he served as a police officer for 11 years, and hear him lay out his conception of what’s going wrong in the world of policing and how it could be made right.

Don’t Be Fooled. The Corporate Elites Are Gaslighting You Once Again

We are trapped in an abusive relationship. When we finally have enough, our abuser comes after us with flowers and apologies, promising never to do it again.

Police take the knee. NASCAR and the U.S. Marine Corps ban the display of the Confederate flag. Nancy Pelosi uses a kente scarf as a political prop. Joe Biden, one of the driving forces behind militarized police, the massive expansion of mass incarceration and the doubling and tripling of sentences, speaks at George Floyd’s funeral. The National Football League apologizes for its insensitivity to racism, although no teams appear to be negotiating with Colin Kaepernick.

The mayor of Washington D.C., Muriel Bower, had the words “Black Lives Matter” painted in 35-foot-tall letters on a street near the White House but has also proposed a $45 million increase in the police budget and the construction of a $500 million new jail. The press, which does not confront corporate power and rarely covers the poor, rendering them and their communities invisible, engages in circular firing squads, sacking or admonishing editors and journalists for racially insensitive thoughtcrimes, to advertise its commitment to people of color.

“The public displays of solidarity are, as in the past, smoke and mirrors, a pantomime of faux anguish and empathy by bankrupt ruling elites.”

Once again, we see proposed legislation to mandate police reform—more body cameras, consent decrees, revised use-of-force policies, banning chokeholds, civilian review boards, requiring officers to intervene when they see misconduct, banning no-knock search warrants, more training in de-escalation tactics, a requirement by law enforcement agencies to report use-of-force data, nationally enforced standards for police training and greater diversity—proposals made, and in several cases adopted in the wake of numerous other police murders, including those of Eric Garner, Michael Brown and Philando Castile. The Minneapolis Police Department, for example, established a duty to intervene requirement by police officers after the 2014 killing of Brown in Ferguson. This requirement did not save Floyd.

Police unions, often little more than white hate groups, continue to have the unassailable power to brush aside would-be reformers, including community review boards, mayors and police chiefs. These unions generously bankroll the campaigns of elected officials, including public prosecutors, who do their bidding. Police unions and associations have contributed $7 million to candidates running for office in New York state alone, including $600,000 to Andrew Cuomo during his gubernatorial campaigns.

It is, as Yogi Berra said, “déjà vu all over again.”

The public displays of solidarity are, as in the past, smoke and mirrors, a pantomime of faux anguish and empathy by bankrupt ruling elites, including most Black politicians groomed by the Democratic Party and out of touch with the daily humiliation, stress of economic misery and suffering that defines the lives of many of the protesters.

These elites have no intention of instituting anything more than cosmetic change. They refuse to ask the questions that matter because they do not want to hear the answers. They are systems managers. They use these symbolic gestures to gaslight the public and leave our failed democracy, from which they and their corporate benefactors benefit, untouched. What we are watching in this outpouring of televised solidarity with the victims of police violence is an example of what Bertram Gross calls “friendly fascism, the “nice-guy mask” used to disguise the despotism of the ultra-rich and our corporate overseers. Whatever you think about Donald Trump, he is at least open about his racism, lust for state violence and commitment to white supremacy.

“The problem is an economic and political system that has by design created a nation of serfs and obscenely rich masters.”

The crisis we face is not, as the ruling elites want us to believe, limited to police violence. It is a class and generational revolt. It will not be solved with new police reforms, which always result, as Princeton professor Naomi Murakawa points out in her book “The First Civil Right: How Liberals Built Prison America,” in less accountable, larger and more lethal police forces.

The problem is an economic and political system that has by design created a nation of serfs and obscenely rich masters. The problem is deindustrialization, offshoring of manufacturing, automation and austerity programs that allow families to be priced out of our for-profit healthcare system and see nearly one in five children 12 and younger without enough to eat.

The problem is an electoral system that is legalized bribery designed to serve a tiny, unaccountable cabal of oligarchs that engage in legalized tax boycotts, deregulation, theft and financial fraud. The problem is that at least half of the working class and working poor, a figure growing exponentially as the pandemic swells the ranks of the unemployed, have been cast aside as human refuse and are being sacrificed on the altar of profit as the country reopens for business and the pandemic crashes in wave after wave on front line workers.

The problem is the diversion of state resources, including over half all federal discretionary spending, to an unaccountable military machine that wages endless and futile wars overseas, the savage face of white supremacy beyond our border. This military machine perfects its brutal tactics and tools for control on people of color in the Middle East, as it did in other eras in Vietnam, Latin America and the Philippines. It passes on this knowledge, along with its surplus equipment, including sophisticated equipment for wholesale surveillance, drones, heavily armed SWAT teams, grenade launchers and armored vehicles, to police at home. Smashing down a door and terrorizing a family in a night police raid in Detroit looks no different from a night raid carried out against an Afghan family by Army Rangers in Kandahar.

Empires eventually consume themselves. Thucydides wrote of the Athenian empire that the tyranny it imposed on others it finally imposed on itself.

The entrenched racism in America has always meant that poor people of color are the first cast aside in society and disproportionately suffer from the most brutal forms of social control meted out by the police and the prison system. But there will not be, as Martin Luther King pointed out, racial justice until there is economic justice. And there will not be economic justice until we wrest power back from the hands of our corporate masters.

Until that happens, we will go through cycle after cycle of brutal police murders and cycle after cycle of the profuse apologies and promises of reform. We are trapped in an abusive relationship. When we finally have enough, when we cry out in pain and walk out, our abuser comes after us with flowers and apologies and promises to change. Back we go for more.

My hope is that this time around the gaslighting will not work. The protestors that have taken to the streets in some 750 cities are young, diverse, angry and savvy. Many were betrayed by the Democratic Party hierarchy who once again ganged up on Bernie Sanders to shove a corporate stooge down our throats, the calculation by the ruling elites being that as awful as Biden is, we will vote for him because he is not Trump. That this tactic failed in 2016 doesn’t seem to faze the oligarchs.

“By defunding or abolishing the police, or by paying prison workers fair wages, the primary bulwark used to keep a subjugated population in check will be removed, or in the case of prisons make the system of neo-slavery financially unsustainable.”

Many of those in the streets can’t find meaningful work, are often burdened by large sums of student debt and have realized that in this world of serfs and masters they don’t have much of a future. They understand that if these protests are to succeed, they must be led by people of color, those who suffer disproportionally from the inequities and violence meted out by the occupying forces of the corporate state. And they also know that social inequality is at the root of the evil we must vanquish.

The ruling elites will never willingly defund or abolish the police, which cost taxpayers $100 billion annually and often eat up half of city budgets, for the same reason they will never pay a minimum wage to the 2.3 million prisoners who work in our ever-expanding gulag. By defunding or abolishing the police, or by paying prison workers fair wages, the primary bulwark used to keep a subjugated population in check will be removed, or in the case of prisons make the system of neo-slavery financially unsustainable.

Rather, the elites, while assuring us that they feel our pain, will insist, as Biden is doing, that by throwing even more money at the police, and increasing police numbers on the streets of our cities, police will be accountable. This is true. But the police will be accountable not to us but the ruling class.

In 1994, then Senator Biden pushed through the Violent Crime and Law Enforcement Act. It was supported by the Congressional Black Caucus, evidence of the growing disconnect between black political elites and those they should protect. The caucus has, in the face of the current crisis, once again called for the tired and toothless reforms that got us into this mess. “Black elected officials have become adept at mobilizing the tropes of Black identity without any of its political content,” notes Keeanga-Yamahtta Taylor in the New York Times.

The bill authorized $30.2 billion over six years for police and prisons. Biden boasted that he “added back into the Federal statutes over 50 death penalties—50 circumstances in which, if a person is convicted of a crime at a Federal level, they are eligible for the death penalty.” The bill, he bragged, authorized “over 70 increased—70, seven zero—70 increased penalties in new offenses covering violent crimes, drug trafficking, and gun crimes.” It also established the Community Oriented Policing Services or COPS Program that has handed more than $14 billion to state and local governments, most of the money used to hire more police. COPS also provided $1 billion to place police in schools, accelerating the criminalization of children.

The 1994 bill more than doubled the prison population. The United States now has 25 percent of the world’s prison population, although we are 4 percent of the world’s population. Half of the 2.3 million people in our prisons have never been charged with physically harming another person and 94 percent never had a jury trial, coerced to plea out in our dysfunctional judicial system.

Biden proudly said in 1994 he represented a new Democratic Party that was tough on law and order. “Let me define the liberal wing of the Democratic Party,” he said at the time. “The liberal wing of the Democratic Party is now for 60 new death penalties. That is what is in this bill. The liberal wing of the Democratic Party has 70 enhanced penalties, and my friend from California, Senator Diane Feinstein, outlined every one of them. I gave her a list today. She asked what is in there to every one of them. The liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the democratic Party is for 125,000 new State prison cells.”

There is only one way to defeat these forces of occupation and the ruling elites they protect. It is not through voting. It will come from the streets, where tens of thousands of courageous men and women, facing arrest, indiscriminate police violence, economic despair and the threat of Covid-19, are fighting for not only an end to racism, but for freedom.