“Our Endangered Right to Protest”

Tabatha Abu-el Haj in the Washington Monthly:

The same cannot be said today. A recent study found that 96 percent of protests for racial justice in 2020 involved no injuries to persons or property. Yet it was not just in Philadelphia that Americans who took to the streets demanding police accountability were met with tear gas, pepper spray, and rubber bullets. Indeed, the Attorney General of the United States himself ordered the forcible removal of Americans peacefully protesting in Lafayette Square.

The First Amendment offered little constitutional cover in practice from these forced dispersals, or from the many other arrests. According to a House Oversight Committee briefing, more than 10,000 individuals who participated in anti-police brutality marches in May and June 2020 were arrested, mostly for nonviolent misdemeanors. The vast majority of these charges—upward of 90 percent in many jurisdictions—have been dropped or dismissed. Such arrests, even when they are subsequently dropped, nullify the formal constitutional right by taking protesters off the streets at the moment they wish to register their protest. And they create fear and reticence to participate again.

Protesters have fared only slightly better when their claims have been heard by courts. Judge Algenon L. Marbley, Chief Judge for the Southern District of Ohio, recently estimated that there have been no fewer than 73 constitutional challenges arising out of the summer’s protests of George Floyd and Breonna Taylor’s murders. Yet, for the most part, judicial vindication of the right of peaceable assembly has been overshadowed by claims under the Fourth Amendment’s right to be free from excessive force. Even in those cases that do engage with First Amendment issues, courts have not adjudicated the constitutionality of the dispersal orders themselves. Judge Marbley himself only ruled that the plaintiffs were likely to succeed in proving that the Columbus police department’s decision to use force against nonviolent protesters had been in retaliation for the anti-police message of the protests. His decision takes no official position on whether any of the dispersal orders were, per se, a violation of the First Amendment, even though he credits testimony from a police commander that in at least one of the incidents under review, “99% of these people are peaceful”—yelling, but not threatening anyone. His opinion in Alsaada v. City of Columbus thus does not clarify the scope of the right of peaceable assembly.

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