This chapter considers the impact of nonjudicial actors in defining and limiting the scope of First Amendment rights. The protection of First Amendment rights cannot be solely the province of the federal courts; non-judicial actors have an important role to play in securing expressive freedoms and facilitating the operation of the political marketplace of ideas. Police, prosecutors, and other public officials who exercise discretionary authority can use their discretion either to facilitate or impede the exercise of First Amendment rights.1 The misuse of discretionary policing authority can profoundly affect the ability of ordinary citizens to gather in public spaces for the purpose of exercising their rights of speech, assembly, association, and petition – rights that remain highly salient even in the age of the internet.2 As Professor Tabatha Abu El-Haj has argued, “[o]utdoor assembly has unique attributes as a form of political participation, even in the twenty-first century.”3

Thus, non-judicial actors play an important role in determining the scope of protected speech rights. When police officers and prosecutors arrest and charge protesters, then drop charges that seem questionable on First Amendment grounds, the damage to First Amendment values remains.