Historically, American authorities have reacted to public protest movements not by seeking to accommodate or facilitate them, but rather by relying on laws, regulations, and often brute force to control and deter speech and assembly in the public square. Among other actions, officials have infiltrated and surveilled protest groups, tightly controlled access to public properties, punished protesters under a wide range of broadly worded public disorder laws, and used aggressive police tactics against even peaceful protesters. To be sure, as the Supreme Court observed long ago, no one has a right to meet in the middle of Times Square at rush hour, block access to buildings, or ignore all traffic laws.1 Nor does the First Amendment protect violent conduct or destructive behavior. Clearly, governments must enforce some rules to maintain public order and keep the public peace. But as this book will show, the law of public protest manages public contention and dissent far beyond such rudimentary requirements. The law imposes limits and obstacles that generally favor order and tranquility over disruptive, noisy, and untidy forms of direct public action.
The Law of Public Protest
In the U.S., public protest and dissent are actively managed through judicial precedents, laws, regulations, common law actions, policing practices, and embedded norms that collectively comprise what the book refers to as the “law of public protest.” In general, scholars have not identified or analyzed these subjects as a coherent body or area of law.2 The book maintains that we can and should do so. Indeed, only by adopting this approach can we appreciate the serious challenges public protest currently faces.
Although “protest” is a complex concept, for now let us generally conceive of a public protest as a gathering of individuals, in a public place, for the purpose of communicating some thought or idea to a public audience. Protest in that sense usually takes familiar forms such as demonstrations, rallies, and pickets.
Constitutional, statutory, and regulatory provisions affect everything from whether, where, how, and when a protest can occur. Protest organizers, participants, and supporters are subject to common law actions for personal injuries, damages to reputation, and infliction of emotional distress. Federal and state laws affect the remedies protesters may be entitled to in the event their constitutional rights are violated. Customs, practices, and norms relating to policing protest also affect the ability and willingness to organize and participate in public protests. The sources of the law of public protest range from local ordinances to state and federal statutes and constitutional provisions. The body of law is defined, administered, amended, enforced, and interpreted by a variety of officials – lawmakers, courts, local officials, administrators, campus officials, police officers, and in extraordinary cases even members of the National Guard and U.S. Armed Forces.3
As large and diverse as this body of protest law is, the commonality is the act of public contention at the center of it all – assembling with others to engage in a public demonstration that communicates viewpoints to various audiences, bands people together in common causes, and contributes to self-worth. This is such a familiar ritual that most Americans probably take it for granted. However, beneath the surface, there is a very real and identifiable body of law that affects everything from a public protest’s inception to its culmination – and even matters beyond the event itself, including the criminal and civil liabilities of organizers and participants.4
The law of public protest, which is described in more detail in Chapter 2, includes lengthy and detailed administrative codes that govern the permitting of protest events, the time, place, and manner of their occurrence, and the imposition of costs. Detailed statutory and administrative codes dictate the number of protesters who can assemble, the places where they are allowed to march and speak, and the types of activities in which they can lawfully engage. The codes often impose significant upfront costs on protest organizers, including the posting of security bonds and charges relating to cleanup.
Under the First Amendment’s “public forum” and “time, place, and manner” doctrines, protest is only allowed in limited categories or types of places. Laws and regulations exclude protest and other expressive activities from highly symbolic places, including areas near courthouses and national monuments. “Free speech zones” cabin and trap public protest. Targeted protest regulations (TPRs) strictly limit protest in specific locations including near medical facilities, vaccination sites, funerals, and polling places.
Law enforcement has broad discretion to enforce laws and regulations affecting public protest wherever it occurs. Some of that discretion is built into permitting schemes.5 Law enforcement authority also includes enforcement of a variety of offenses relating to public safety and order: for example, “breach of peace,” “disorderly conduct,” “unlawful assembly,” and “incitement to riot.”6 Under these laws, officers can arrest protesters for a wide range of offenses, including minor breaches of the peace.7 Using their broad discretion under these laws, police can quickly declare and remove “unlawful assemblies,” charge protesters with “disorderly conduct” and “conspiracy to riot,” and issue orders for even peaceful protesters to disperse from a public area they otherwise have a legal right to occupy.8
Enforcement of these public order laws is a critically important aspect of the law of public protest.9 As much – perhaps even more – than any First Amendment doctrines, law enforcement’s exercise of broad discretionary power determines the scope of protesters’ rights on the ground.10 For example, while the First Amendment may grant protesters a formal right to speak in a particular place, officers can effectively countermand or undermine that right with a discretionary order to disperse. The protester’s choice is then to refuse to comply and risk arrest or to compliantly move along. Moreover, as will see, the law of public protest offers little prospect of recovering damages from officials who violate the First Amendment or other constitutional rights.
As the 2020 BLM protests showed, aggressive protest policing remains one of the most significant threats to the exercise of public protest rights.11 The norms and practices of law enforcement, including its reliance on surveillance and militarized policing methods, have a significant impact on the exercise of public protest rights.
As noted, the law of public protest also includes common law and statutory causes of action that apply generally, or sometimes in specific terms, to protesters. Protest organizers can be liable for damages for committing civil offenses such as trespass to property, defamation, infliction of emotional distress, and damage to business relations. In recent years, litigants have pursued increasingly novel civil liability theories against protesters, arguing that they “negligently organized” a demonstration or “aided and abetted” riots.12
As if this were not enough to contend with, protesters must now consider the possibility that some counter-protesters and other attendees will carry firearms. The Supreme Court’s recognition of public carry rights and state laws authorizing open and concealed carry may have a profound effect on the exercise of First Amendment speech and assembly rights. For that reason, these rights and legal protections have now become part of the law of public protest.
As the recent pandemic and widespread civil unrest have shown, the law of public protest must also account for emergency circumstances. Special state and federal laws apply to public protests that take place during both declared and undeclared emergencies. As we saw during the COVID-19 lockdowns, state laws and executive orders can significantly affect the right to assemble in public places. Indeed, in some states public protest was deemed a “non-essential” activity.13 During periods of civil unrest, the law of public protest provides broad discretion to state and national officials to maintain public order.
Finally, the law of public protest includes potential remedies that apply when protesters’ First Amendment or other constitutional rights are violated. Suits for damages are severely limited by federal and state civil rights statutes, which generally grant broad legal immunity to law enforcement and other officials. Under current remedial law, protesters may find it difficult, if not impossible, to obtain monetary damages against state or federal officers.
The law of public protest is always changing and growing. Lawmakers have responded to mass and other protest actions by adopting additional restrictions on public protest. This backlash legislation includes additional limits on where protest can occur, authorization of protest-specific civil actions, an increase in criminal and civil penalties for even minor acts of civil disobedience, and even loss of public benefits for protest-related offenses.14
Each of the foregoing aspects of the law of public protest is subject to or influenced by federal constitutional rights provisions. These provisions are, of course, part of the law of public protest.
The most important is the First Amendment, which limits the scope of official authority to restrict protest activities. First Amendment precedents and doctrines govern place regulations, application of permit schemes and regulations, imposition of protest-related costs, common law and statutory liabilities of protesters, and enforcement of laws that restrict speech, assembly, and press activities. Among other things, First Amendment doctrines determine which public properties are available to protesters (“public forum”), how, when and where protest can occur (“time, place, and manner”), and the extent to which counter-protesters can interfere with protest speech (“hostile audiences”). As we will discover, although the First Amendment contains rights of speech, assembly, and petition – each of which would support a constitutional right to organize and participate in public protest – the Supreme Court has not developed any distinct doctrines or standards concerning assembly and petition. It has treated assembly and petition rights as essentially subsumed by the First Amendment’s free speech right.15
Two other provisions round out the constitutional dimension of the law of public protest. As noted, the Second Amendment and state laws recognizing the right to bear arms in public places can affect protesters’ exercise of speech and assembly rights.16 The right to bear arms in public places also affects the policing of public protests, including law enforcement’s ability to keep protest participants safe.17 The Fourth Amendment also imposes some limits on whether and how police can surveil, arrest, and detain protesters.18 Although the bulk of the book’s discussion will focus on the First Amendment, to the extent they affect public protest these other constitutional rights will also be considered.
In 1965, when the civil rights protests were still in the news, Harry Kalven, Jr. observed, “what is required is in effect a set of Robert’s Rules of Order for the new uses of the public forum, albeit the designing of such rules poses a problem of formidable practical difficulty.”19 Kalven was correct on both scores. His comments foreshadowed a system or body of law that today consists of a wide array of administrative, common law, and criminal law standards. That system affects everything about public protests, including where, how, and when they may occur, how protest activities are policed (during ordinary times and in “emergencies”), whether one may come armed to a public protest, the costs and liabilities imposed on protest organizers and participants, and the remedies available to protest organizers and participants.
Managed Dissent
Greg Magarian has criticized the Supreme Court’s recent free speech decisions for adopting a “managed speech” perspective. He has argued the Court’s decisions generally favor social order and established institutions over a culture of disruptive expression.20 This book borrows Magarian’s managerial nomenclature and critique, but applies it to the system of law that limits public protest activity. The Court’s decisions and the laws, regulations, and norms that have sprouted from them generally favor the status quo over socially disruptive protest and dissent. The law of public protest imposes a system of “managed dissent” that makes collective contention more dangerous, more expensive, less effective, and ultimately less likely to occur. In short, managed dissent overburdens protest in the service of societal and other forms of order.
Under the managerial system, which has been in force for at least half a century, public protest is obviously allowed to occur; however, it is subject to severe limitations. Managed dissent is rooted in the perspective that even peaceful protests are worrisome acts of public contention that must be strictly regulated in the name of order, safety, tranquility, and other government interests. The primary concern is the maintenance of public order. Under managed dissent, even minor disruptions of ordinary commerce and social life are valid justifications for the exercise of regulatory authority.
It has not always been so. The First Amendment’s text protects the freedom of speech and the right to “peaceably” assemble with others. As Tabatha Abu El-Haj has shown, notions of “peaceably” have changed dramatically over the course of American history.21 Her work has demonstrated that up until the nineteenth century, officials and courts were relatively tolerant of disruptive forms of public protest – even when they interfered with commerce or posed a potential threat to public order. As Abu El-Haj has written, “Nineteenth-century Americans had a much higher social and legal threshold for the irritations that come with democracy.”22
Over time, however, this tolerance gradually eroded and was replaced by a more restrictive law of public protest. Today that law is predisposed to favor passive, polite, and “respectable” forms of demonstration. Managed dissent is manifested in doctrines that restrict access to public forums and allow government to limit the time, place, and manner of protest. It favors regulatory devices such as “free speech zones” and targeted place restrictions (TPRs) over freedom of movement and access to broad swaths of the public protest topography. As one commentator has noted, “It seems that, in general, acceptable or protected forms of protest are planned, scheduled, organized, and choreographed – they are set in locations and scheduled at times that do not disturb the smooth flow of traffic, of predictable consumer activity.”23
In orientation and practice, managed dissent is antithetical to, or at least in considerable tension with, a supposed national commitment to robust and unreserved public discourse.24 The popular narrative is that the First Amendment operates as a broad license for dissenters to engage in expression that agitates audiences, stirs people to anger, and disrupts daily life. But as discussed in greater detail in Chapter 2, from a very early point in time, the Supreme Court has been most likely to protect speech and assembly when these activities did not create unrest or threaten to disrupt the status quo.25 Most significantly, the Court has never been disposed to treat public protest as a fully legitimate and protected form of expression.
The Warren Court’s rights revolution was, of course, the notable exception. During the Civil Rights Movement, public protesters achieved some storied First Amendment victories – even though their message was unwelcome, upsetting, and purposefully disruptive to defenders of racial segregation. (So, by the way, did Ku Klux Klansmen, who “won” the right to hurl racially derogatory invective so long as it did not incite imminent unlawful action.)26 Although the Civil Rights Movement of the 1950s and 1960s publicly and expressly committed itself to peaceful and orderly forms of public protest, direct actions including marches and sit-ins were messy and disruptive of the then-prevailing social and political order.27
As discussed in Chapter 2, the Warren Court’s decisions established important First Amendment breathing space for public contention. Although they set what would become a high-water mark for the protection of public protest, Supreme Court precedents from this era also frequently emphasized that public demonstrations were “passive.”28 Further, even the Warren Court expressed ambivalence regarding whether public protests and demonstrations were worthy of full First Amendment protection. Robust protection was reserved for what the Court referred to as “pure speech,” in contrast to less-than-pure forms of expression such as demonstrating, marching, and picketing – speech, as one opinion described it, “brigaded with action.”29 As Kalven observed at the time, the Court’s opinions “bristled with cautions and with a lack of sympathy for such forms of protest.”30
Although modern First Amendment doctrines broadly protect contentious and offensive messages and ideas, they create less physical and conceptual breathing space for collective forms of dissent. Insofar as public protests are concerned, the First Amendment’s most robust protections have long been reserved for those who curb their behavior or conform it to societal norms and expectations. Further, protest policing has been infected by managerial biases and related abuses. As the nation witnessed during the summer of 2020, even the most peaceful public assemblies are frequently met with tear gas, non-lethal projectiles, and command-and-control policing tactics.
Judicial skepticism of direct action, including street protests and pickets, has profoundly influenced the law of public protest, which allows officials to manage dissent by restricting movement, controlling time and place, and curbing disruption. Administrative codes, criminal laws, civil actions, protest policing, and other forces all conspire against forms of protest that are not polite, compliant, orderly, and socially conformist.
Protesters generally have no First Amendment right to be seen or heard by their intended audiences, and no right to dissent in the place, at the time, or in the manner that they deem most effective.31 As Occupy Wall Street demonstrated, they have no First Amendment right to calmly commandeer public places for extended periods. Indeed, those who fail to comply with a multitude of administrative and other prerequisites and conditions may be prevented from assembling at all. To ensure they do not step or march out of line, protesters are subject to a host of criminal and civil liabilities. Meanwhile, law enforcement officers who violate law-abiding protesters’ First Amendment or other rights are very likely to escape accountability for their actions, owing to legal and constitutional doctrines that favor their discretionary use of force or immunize their unconstitutional behavior altogether.
Even before the tear gas dissipated in Minneapolis, Portland, Kenosha, and other cities where mass BLM protests occurred, there were already calls for more and broader public protest management. As noted earlier, Republican-controlled legislatures quickly churned out measures that increased the criminal penalties for protest-related offenses such as “riot” and “obstruction of passage,” shifted the costs of cleanup and security to protest organizers, recognized new civil causes of action against protesters, declared offenders of broad new “riot” and other protest-specific laws ineligible for benefits including housing assistance, student loans, and state employment, and even immunized drivers who negligently ran over protesters in the streets.32
In the aftermath of recent mass protests, increasing managerial authority is precisely the wrong lesson to learn and direction to take. The First Amendment does not protect acts of violence and vandalism, which are already unlawful. There is no absolute right to protest in public. Some degree of public order is necessary. But the law of public protest ought to allow and even facilitate peaceful public protests – even if, perhaps especially if, they disrupt everyday routines, offend public audiences, and compel people to take notice. Public protest deserves full First Amendment recognition and protection, even when it is not passive and polite. As Jeremy Waldron has observed, “disorder and disruption are not pathological versions of demonstrating, as though a civically virtuous protest would be self-effacing.”33 Unfortunately, the system of managed dissent is based precisely on these conceptions of pathology and virtue.
Public Attitudes and Public Protest
The law of public protest and the system of managed dissent are, at least in part, reactions to public concerns about the potential dangers associated with large public displays of contention and dissent. Many of the most restrictive aspects of this body of law developed in response to concerns about maintaining “law and order.” As we unpack and consider the laws regulating public protest activity, it is important to situate them in a broader narrative about public protest and public disorder in the United States.
Notwithstanding the nation’s venerable tradition of public protest, Americans have a complicated relationship with this form of democratic activism. Many recognize the need to create and preserve public breathing space for people to communicate their grievances and celebrate both their differences and the traditions that bind them together. However, in general, Americans do not have a favorable view of public protests.
A recent aggregate review of polls regarding public protests concluded that “the public’s overall attitude toward mass demonstrations seems to range from skepticism to outright condemnation. Historically, even the most popular protest events have support levels that hover below fifty percent, and positive responses to protest movements are rarely higher than negative ones.”34 Americans might support robust protest rights in the abstract, even if they do not tend to support specific movements. But other polling reveals a general and growing hostility to dissent and disruption. For instance, in one recent poll, more than half of the respondents agreed that individuals who publicly burn the U.S. flag should lose their citizenship and that controversial speakers should be banned from university campuses if students are likely to engage in violent protests in response to the speakers’ visits.35
Although they may have strong views on protests, few Americans have traditionally participated in them. One recent survey put the number at approximately 15 percent of the adult population.36 Although millions of Americans may participate, only a small percentage are actively engaged in this form of dissent and are shouldering most of the burden. The news is not all bad though. There have been recent upticks in both protest support and participation numbers. Data show that Americans’ general support for public protests increased during Donald Trump’s presidency.37 Recent protests including the March for Life, Women’s March, and BLM demonstrations have attracted large groups of participants. So have those focused on gun control, climate change, immigration restrictions, and healthcare. Finally, the largest share of protesters at the 2020 BLM protests consisted of those under 35 years of age, and many reported this was their first time getting involved in any form of public activism or demonstration.38
Americans’ apparent ambivalence toward public protest likely has many causes and explanations. Part of what may be affecting the polling is media coverage of protests, which skews heavily toward conflict and violent episodes while ignoring mostly peaceful demonstrators. As Magarian has observed, “Whenever violence erupts in or around a protest, the dominant narrative portrays the protest as pervasively violent.”39 As he noted, that is a “dangerous fallacy to indulge if we care about sustaining a vibrant democracy.”40 Moreover, as Magarian points out, to the extent the narrative reinforces racist stereotypes, it is particularly harmful to people of color who participate disproportionately in public protests.41
When assessing the public’s generally negative attitudes concerning public protest, we should not discount the influence of politicians and other opinion leaders. In recent years, high-level federal officeholders including Senator Mitch McConnell and former President Trump have denigrated both protests and protesters. They have referred to public protests as a form of “mob rule” and derided them as “embarrassing.” Members of the Trump Administration, including the president himself, encouraged law enforcement and state militias to “dominate” the streets as a “battlespace” during protests and to charge protesters with “sedition.” (The former president’s attitude toward the Capitol insurrectionists has been notably different.)42 Right-wing media outlets have echoed and amplified many of these sentiments, characterizing even peaceful protests as lawless and violent and protesters as domestic terrorists.
Public protests do impose actual costs in the form of noise, disruption, and individual acts of vandalism and violence. These costs are likely to be fueling some of the negative public attitudes concerning protest. Some Americans cannot (or simply refuse to) distinguish between lawful forms of “protest” and unlawful “riot” and hence are prone to characterize all collective forms of dissent as threats to public order. Like much else in modern American politics and culture, public protest has become sharply politicized. In broad terms, the ideological right has come to see public protest as “mob rule” rather than a form of legitimate democratic dissent (at least when engaged in by ideological opponents), while the left generally continues to support public protest as a legitimate means of public discourse. At the same time, some who supported (or did not publicly object to) protests near the homes of abortion providers adamantly oppose that same activity near the homes of Supreme Court Justices – and vice versa. In sum, to some degree, public attitudes about public protest are ideologically contingent.
As Magarian has observed, “protests are a fluid, contestable, radically democratic phenomenon.”43 For protesters and their supporters, these may all be positive attributes. For others, however, these same characteristics may be viewed as threats to social order. The tension between the core democratic need to engage in sometimes disruptive public contention and concerns about maintaining public order is a central concern of this book. How does a society that recognizes the value of public protest but prefers that it generally be orderly and peaceful balance these competing concerns? How do we preserve a robust culture of protest and dissent when so many forces are aligned against public displays of contention?
In Defense of Public Protest
This book critically analyzes the law of public protest and the system of managed dissent this body of law models and sustains. It assumes that a robust culture of public protest and dissent is necessary to preserve democratic self-government and furthers other critically important First Amendment values.44 Judging by opinion polling concerning public protest, a significant percentage of Americans do not share this assessment. Part of my burden, then, is to convince those who view public protest as unworthy of preservation that they are wrong – or at least suggest reasons why they should be more open to supporting it.
As noted, today’s protesters can trace a lineage of dissent back to their colonial forbears, who frequently assembled, protested, and petitioned in public places – often disruptively and disrespectfully.45 Indeed, early American protests sometimes included acts of vandalism, destruction of property, and even physical assault. Demonstrators tore down statues of King George, set fire to officials’ homes, and destroyed private property.
Today many celebrate these protest pioneers not for their violent actions, which the First Amendment does not shield, but rather for their courage to dissent and the legacy of their contention. Large, disruptive demonstrations are not a new phenomenon in the U.S. America’s founders well understood the potency of disruptive dissent, as have subsequent generations.
The acts of prior generations suggest that the law governing public protests ought to facilitate a culture of dissent rather than manage it into submission. Many of the reasons are rooted in the principal and well-known justifications for freedom of speech, assembly, and other expressive rights – the need to foster self-government, facilitate the search for political and other truths, and protect the speaker’s autonomy in choosing how to communicate.46
Although protests are many things, they are fundamentally a means of expression. To be sure, as noted earlier the Supreme Court has expressed ambivalence about granting protest activity full First Amendment protection. In a decision since overturned, the Court indicated “such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals.”47 However, during the Civil Rights Era, the Court once described political demonstrations as the exercise of expressive rights “in their most pristine form.”48
When they assemble in public places, protesters engage in a kind of augmented expression. The Court has recognized that “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association” and collective forms of expression.49 Through collective expression, many protests seek to convey a message to governments, fellow citizens, or both.
One could simply rest a defense of public protest on the fact that some “speech” is involved, and the First Amendment protects the right of collective expression (at least to some degree). However, that would do public protest a disservice; its political and social values are much broader and deeper.
Some consider protest and dissent to be aspects of civic virtue. In this view, participation in such activities is a necessary predicate for self-government. Justice Louis Brandeis defended protection for group dissent in a famous concurring opinion in Whitney v. California (1927) – the same decision, incidentally, in which the Court’s majority described political assemblies as dangerous.50 In Whitney, Brandeis claimed “the greatest menace to freedom is an inert people” and that “public discussion is a political duty.”51 He relied on principles of civic republicanism, which hold that raising one’s voice in protest is not merely a right one possesses but a duty one owes to the political community.
Leading justifications for freedom of speech, including the principle that public discourse facilitates self-governance and the search for truth, are based on the collective democratic benefits of expression. Public protest facilitates interaction among diverse groups of citizens in the public square. This is a necessary predicate for exercising democratic agency and engaging in public discourse on matters of public concern.52 Public protest represents the politics of the people out of doors. It contributes to local, state, and national public discourses. By moving these conversations outside or beyond committee rooms and office suites and into public streets and other venues where the public gathers, protest democratizes political and other forms of dissent.
Public protest also increases the responsiveness and transparency of the government. Demonstrations and rallies communicate, in part, through their numbers and the physical presence of those in attendance. One of the unique things about protests is that they make bodies visible to both the public at large and public officials. Through their presence in public places, protesters demand recognition and notice from government officials and other intended audiences. In these and other ways, public protests amplify political and social identity claims that may not otherwise receive any – or at least not as much – public attention and sympathy.
Public protest also serves as a critically important safety valve for collective grievance and dissent. Environmental, immigration, abortion, firearms, and a variety of other groups have all gathered in public places to blow off political steam and make their voices heard. Public protests act as important outlets for grievance and dissent.
In addition to these collective benefits and interests, public protests support individual interests. Demonstrations allow people who feel oppressed or disregarded to physically demonstrate their presence on a public stage. For many, protest is a cathartic act of self-fulfillment. As one commentator noted, public protests are “often as much about increasing the individual’s sense of power and self-actualization as they are about the actual content of the words spoken at such events.”53 Further, for many organizers and participants, protest has dignitary value separate and apart from any specific message the group seeks to convey or any collective enterprise.54 In sum, for the individual, public protest is the performance of identity and solidarity, a public act of resistance to authority, and a rejection of the status quo.
Public protest also has strategic advantages relative to other forms of expression. Unlike emails, newspaper op-eds, and social media posts, public protests disrupt ordinary routines in public places. They can require drivers to change their routes, pedestrians to walk around or through certain areas, and some businesses to close their doors for a time. Because of these effects, protests are much more difficult to ignore than other kinds of expression. As the Supreme Court observed in a case involving restrictions on “sidewalk counselors” located outside abortion clinics:
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas. Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir. With respect to other means of communication, an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune out.55
Notably, the Court described the difficulty in avoiding public expression as “a virtue, not a vice.”56
As Magarian has written, “without noise democracy dies.”57 Public protest is part of the soundtrack – the “noise” – of democracy. A self-governing and civic-minded people must be both willing and able to present their grievances in public places, including in collective form, to representatives and others in a way that makes them difficult to disregard. A society that boasts of its robust cultures of liberty and dissent must not only tolerate protest and dissent, but indeed embrace them as legitimate forms of democratic politics.
The COVID-19 pandemic provided a brief glimpse of what life might look like without the “noise” of public protest and dissent. If democracy dies without noise, government edicts that characterize public protest as “non-essential” and the prospect of empty public streets represent an acute crisis. Thankfully, as activists showed, not even a pandemic could fully suppress public protest. Given the constitutional, political, and social values related to public protest, we ought to make it easier, not harder, for individuals – whatever their political affiliation or point of view – to participate in collective expression. In light of recent events, many Americans may be experiencing a degree of “protest fatigue.”58 But a political community that values liberty, recognizes the values of robust public discourse, and believes in self-government must preserve ample breathing space for public protest and dissent.
Public Protest in a Managerial System
This book describes the law of public protest so that we may critically examine its effects and consider possible reforms. To the extent the law of public protest produces a system of managed dissent, it threatens an important aspect of democratic exchange and a peaceful channel of political change. Understanding how the managerial system works, in a holistic sense, can lead to reforms that provide more secure constitutional, legal, and political foundations for public protest and dissent.
Chapter 1 briefly discusses the scope of the concepts of “protest” and “dissent” at the heart of the book’s analysis. It then elaborates on free speech and other values associated with public protest. The chapter closely examines how and what protests communicate, to whom, for whose benefit, and to what end(s). It also analyzes the complicated dynamics concerning the potential for protest violence and the government’s frequent use of force against even peaceful protesters. It asks why the state generally views protests as threatening, and why we continue to witness aggressive forms of protest policing in the U.S.
Chapter 2 provides an overview of the basic rules of engagement for public protest – the legal, constitutional, and other sources of authority that together constitute the law of public protest. It begins with a discussion of the roots of managed dissent in Supreme Court precedents. The chapter then discusses the law of public protest, much of which arises from First Amendment doctrines. It offers a basic taxonomy of protests, which distinguishes among peaceful and lawful, peaceful but unlawful, and violent and unlawful protest activities. Working from this conceptual framework, the chapter summarizes the legal and other restrictions on where, what, and how protesters can lawfully assemble and communicate. It gives special attention to law enforcement’s broad discretionary power to enforce public order laws in ways that disperse even peaceful protests and the use of aggressive protest policing tactics. The chapter also describes several additional aspects of the law of public protest: the presence of firearms at public demonstrations, civil causes of action that expose organizers and participants to significant monetary damages, a “campus management system” that limits protest on university campuses, the invocation and exercise of governmental “emergency” powers during public health emergencies and periods of civil unrest, and severe restrictions on protesters’ remedies for constitutional violations. Individual aspects of this body of law are discussed in subsequent chapters.
Chapter 3 examines legal and other restrictions on the place or location of public protests. It emphasizes the strategic and expressive dimensions of protest placement and criticizes First Amendment doctrines that allow governments to displace protesters. In addition to criticizing the public forum doctrine for shrinking the protest topography, the chapter discusses spatial management tactics including restrictive “free speech zones” and the militarization of public forums during protest events. It also addresses laws that limit or ban protest activity in specific places including abortion clinics, government plazas, the residences of public officials and judges, and areas of “critical infrastructure” such as oil and gas pipelines. The chapter closes with a consideration of the relationship between what the Supreme Court has called the “modern public square” of social media and more traditional public forums. It emphasizes that the “old” and “new” public squares are both critically important to facilitating and preserving public protest.
Chapter 4 focuses on the rising costs of participating in public protest. It examines the various costs and liabilities that may be imposed on protest organizers, participants, and supporters. Monetary costs include permit fees, cleanup costs, policing charges, and insurance liability mandates. These can add up to many thousands of dollars, and in some cases substantially more. On top of these “traditional” costs of dissent, protest organizers and participants sometimes face civil penalty enhancements and punitive damages. They may also be liable for damages under a wide variety of civil causes of action. These include increasingly novel theories of liability, including “negligent protest organizing,” “riot boosting,” “wrongful petitioning,” and “aiding and abetting defamation.” These lawsuits can result in the imposition of crushing civil damages awards, as well as attorney’s fees and court costs. The rising costs of dissent may deter or chill individuals from organizing, participating in, or supporting protests or demonstrations. After considering various forms of protester self-help to contain these costs, the chapter addresses Supreme Court precedents and First Amendment principles that impose strict limits on protesters’ costs and flatly prohibit some of the civil causes of action. It encourages courts and policymakers to take action to contain the rising costs of dissent.
Chapter 5 examines the application of the law of public protest to university campuses. Historically hotbeds of political and social contention, campuses have been transformed by the law of public protest. Officials have borrowed permitting requirements, forum distinctions, time, place and manner regulations, and other parts of the law of public protest to manage public demonstrations that occur inside campus gates. University administrators have exhibited some of the same pathologies as government officials regulating protest elsewhere, including resorting to strict and detailed limits on how, when, and where protests can occur. Like their off-campus counterparts, university administrators are facing increased tension concerning the scope of free speech rights in their communities, the presence of provocative speakers, and the management of hostile students and other audiences. Americans are having a robust national debate regarding the extent to which universities can or should restrict speech and assembly on campus. Relying in part on my experience as the co-chair of an ad hoc committee on First Amendment rights on the William & Mary campus, the chapter identifies and assesses obstacles to organizing, participating in, and regulating campus protests. Places of higher learning have special managerial authorities and must consider communal interests in belonging and inclusion along with expressive rights. However, they have traditionally served as incubators of active and engaged citizens. We must ensure that the nation’s campuses remain places where communities not only tolerate the exchange of ideas but also, to the full extent possible, welcome and facilitate that exchange.
Chapter 6 examines the bearing of firearms at public protests, which has recently become a more frequent phenomenon. The Supreme Court has now held that the Second Amendment applies outside the home. However, gun-related fatalities during recent demonstrations confirm that firearms and free speech cannot safely coexist at public protests. New evidence shows that the presence of firearms intimidates protesters and interferes with their peaceful assembly and protest rights. Arming public protests is, moreover, inconsistent with democratic commitments to peaceful means of democratic change. The chapter focuses on the actions state and local authorities can take to ensure the safety of protesters as they exercise First Amendment rights. It concludes that neither the Second Amendment nor the First Amendment prohibits the enactment of bans or restrictions on the public carrying of firearms at permitted events. At the very least, it concludes states can likely ban the two most intimidating forms of confrontation in the public forum: armed groups and the open display of firearms.
Chapter 7 addresses public protest rights during periods of instability, specifically during public health emergencies and civil unrest. Recent experience with pandemic-inspired “stay-at-home” orders has highlighted the surprising contingency of First Amendment rights. Governments declared public protest a “non-essential activity,” making even peaceful public protest unlawful. The COVID-19 pandemic raised fundamental questions about the government’s power to limit or even ban public protests during health emergencies. Similar questions arose during the civil unrest that followed the murder of George Floyd. In addition to closing public forums and dispersing peaceful protesters with tear gas and other aggressive tactics, officials invoked seldom-used federal laws prohibiting insurrection and riots and authorizing the deployment of the U.S. military to protest venues. The chapter addresses the delicate balance between the government’s interests in health, public order, and safety and the protection of First Amendment rights to protest government policies even – perhaps especially – during public emergencies. It argues courts should be wary of government edicts declaring peaceable assembly and speech “non-essential activities” and equally skeptical of broad restrictions on protest activities during declared or undeclared emergencies. When it comes to the federal government’s role in policing domestic political protests, the chapter urges officials and courts to interpret existing grants of authority narrowly and avoid escalating tensions through deployments and rhetoric.
Chapter 8 addresses the remedies protest organizers, participants, and supporters can pursue in the event their constitutional rights are violated. The principal legal remedy for unlawful actions against public protesters is a federal civil rights lawsuit. However, such actions are notoriously difficult to win. Immunity doctrines often protect federal, state, and local authorities from paying monetary damages. The doctrine of “qualified immunity” broadly immunizes state and local officials who violate First Amendment and other constitutional rights when no “clearly established law” indicates their actions were unlawful. As the Supreme Court has stated, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”59 The Court has also hamstrung protesters and others who claim law enforcement retaliated against them for engaging in protected speech and assembly. Finally, the Court’s precedents strongly suggest protesters cannot bring any First Amendment claims against federal officials. The chapter takes a critical look at these remedial limitations. It presents original data concerning how these obstacles have affected public protest organizers and participants, and identifies “clearly established” law concerning protesters’ First Amendment rights. The chapter joins many others in calling on the Court or Congress to eliminate or significantly reform qualified immunity, restore civil rights remedies for retaliatory actions, and recognize federal officials’ liability for First Amendment violations. In the event federal institutions are unwilling or unable to act, states and localities should continue to reform their qualified immunity laws.
Chapter 9 concludes by identifying a variety of measures and proposals that can help preserve public protest. Some aspects of the managed dissent system, including the “public forum” doctrine, are so deeply embedded that the Supreme Court is not likely to reconsider them. However, several specific reforms and changes are within reach. The chapter offers ten general proposals: (1) judicial recognition and elaboration of independent First Amendment “assembly” and “petition” rights; (2) review and overhaul of administrative codes and permitting schemes to ensure First Amendment compliance; (3) more skeptical judicial review of protest displacement tactics; (4) protest policing reform, with a focus on training and supervision; (5) amendment and more limited enforcement of public disorder offenses that restrict public protest; (6) reduction of the costs of dissent, including limits on civil protest liability; (7) reform or abolition of qualified and other immunities for state and federal officials who violate protesters’ constitutional rights; (8) holistic review of campus policies on free speech and assembly to ensure protection for protest and dissent; (9) banning or significantly restricting the bearing of arms at public protests; and (10) more careful definition and narrowing of state and federal powers to suppress public protest during public health and civil unrest emergencies.
To summarize, the book offers a comprehensive and critical examination of the law of public protest. It affirmatively supports and defends public protest activities and the American tradition of public contention. The book argues in favor of reducing several burdens on public protest and dissent. It presents an honest, if often unflattering, picture of the extent to which the First Amendment protects speech, assembly, and petition rights in connection with public protests. Finally, the book offers various solutions and strategies, both within the bounds of current law and in connection with proposed reforms, for preserving public protest.
