THE REVOLUTION WILL NOT BE TELEVISEDSam Harvey

**Things highlighted in red you may want to write down in your book**

The First Amendment & the Right to Protest

Right to Peaceful Assembly: the right for people to come together and express and defend their interests

Freedom of Association: the right to join groups for the purpose of engaging in constitutionally protected activities

Right to Petition: the right to petition the government for a redress of grievances

Freedom of Speech: the right to express one’s views regardless of their content/message or if others disagree

“Expressive Conduct” Public demonstrations that consist

of communication of views through the use of picketing, marching, distributing pamphlets, addressing publicly assembled audiences, and other forms of protest

Protesters who communicate ideas by conduct (i.e. marches) are less protected than people who communicate their ideas by “pure speech” like speaking.

Protest Cases

• The Supreme Court said that the 14th Amendment doesn’t permit a state to make criminal the peaceful expression of unpopular views.

Edwards v. South Carolina (1963)

• The Supreme Court held that even though the government may not be able to regulate the contents of speech, it can however place reasonable time, place, and manner restriction on speech for public safety. They also held that every parade or procession on public streets had to have a license and that organizers had to pay a fee.

Cox v. New Hampshire (1941)

• The Supreme Court ruled that the government of Oregon was not allowed to make it a crime for a member of a radical group to simply conduct and participate in a public meeting. Chief Justice Charles Evans Hughes declared, “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental,” and, “peaceable assembly for lawful discussion cannot be made a crime.”

DeJonge v. Oregon (1937)

• Justice Brandies said that, “only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech [petition] and assembly by showing that there was no emergency justifying it.”

Whitney v. California (1927)

Methods of Controlling Protests “First Amendment” Zones or “Free

Speech” Zones: These are ways to confine the open expression of ideas to small areas of public property.

Permit or Licensing System: A protest permit is permission granted by a governmental agency for a demonstration to be held in a particular location at a specific time.

Kettling Techniques: This is when police officers wearing riot gear use their bodies to form a barrier around a group of protesters. The area inside the cordon is called a kettle and the process of enclosing protesters in this way is called kettling.

Limitations/Restrictions on the Right to Protest

Time, Place, & Manner: allow the government to control when, where, & how people protest & express their views

Public Forum Doctrine: the government regulates the exercise of free speech in traditional public places

Prior Restraint (i.e. the Permit System): actions by the government that prohibit expression before it can happen

Time, Place,

& MannerPublic Forum

Prior Restraint

Must be content neutral

Usually public streets, parks, & sidewalks

Can not operate as censorship

Must serve an important government interest

Government can designate a “public forum” temporarily

Prevents a voice from being able to be heard

Government can impose

time, place, & manner

restrictions

Limit how and when protesters get to express their views

Usually “national security” is the reason

Time, Place, & Manner Restrictions

The Supreme Court of the United States has established a four-part test to decide the constitutional validity of time, place, and manner regulation of expressive conduct in a public forum.

The four-part test is as followed: The regulation must serve an important government interest The government interest served by the regulation must be unrelated to the

suppression of a particular message The regulation must be narrowly tailored to serve this interest The regulation must leave open sufficient alternative means to communicate the

message

Public Forum Doctrine A public forum is a place that has, by tradition or practice, been held out for general use by the

public for First Amendment-related purposes. Regarding the regulation of expressive conduct, the government can’t fully close off all avenues

for public protest or restrict access to public forums based on the content of the message. Traditional Public Forums:

The government cannot ban expression completely in the traditional public forum. A traditional or open, public forum is a place with a long tradition of freedom of expression, such as a

public park or a street corner.

Limited (or designated) Public Forums: These are places with a more limited history of expressive activity, usually only for certain groups or

topics such as a university meeting hall or a city-owned theater. The government, in dedicating the forum for expressive purposes, may adopt reasonable limitations on

who may use the forum. The government is under no First Amendment obligation to have opened a limited forum.

Closed Public Forums: These are places that, traditionally, haven’t been open to public expression, such as a jail or a military

base. Governmental restrictions on access to a nonpublic forum will be upheld as long as they are reasonable

and not based on a desire to suppress a particular viewpoint.

Permit System

The permit system is a form of prior restraint and as such prevents communication from ever being heard.

The only legitimate reason for denying a permit would be if the protesters had previously engaged in violent or destructive behavior or if there is evidence that there will be violence.

Permits limit how and where protesters meet, so it’s not hard to imagine that this system has been used by the government for political intentions.

Permits cannot be politically biased. Where voices are muted makes a huge difference as to which voices get

heard.

Law Enforcement’s Impact

Law Enforcement Techniques Infiltration (of activist groups) Surveillance (of activist groups, their

activities, members, etc.) Mass Arrests: This is used to disrupt protest

movements by entangling protesters and their lawyers in costly and time-consuming legal battles.

Excessive Force: Force should only be used where strictly necessary and only to the degree absolutely necessary. Police officers are required to use the minimum amount of force needed to achieve a legitimate purpose, but it’s easy for them to abuse their power when things start to overwhelm them and/or get out of hand.

Barricades, Pens, Cages, Protective Bubbles, & Nets: These are used to control and discipline dissent.

Use of Nonlethal or Less Lethal Weapons (i.e. pepper spray, tear gas, rubber or plastic bullets, shotguns that shoot bean bags filled with lead pellets, batons, etc.)

Use of Conducted Energy Devices (i.e. Tasers or stun guns)

Law Enforcement’s 4 Different Methods of Policing Protests

Escalated Force• Limited concern for the protesters’ speech and assembly rights

• Limited tolerance for community disruption

• Limited communication b/t police and demonstrators

• Extensive use of arrests and force to manage/control demonstrators

• Extensive surveillance of protesters, including infiltration and the use of informants

• Protests are viewed as a major threat to public order, and met with a quick & harsh response

• Ex: The 1960s Civil Rights protests & demonstrations in the 1970s

Negotiated Management

• Active cooperation b/t police and protesters, with the intention of negotiating to remove conflicts that could possibly lead to the use of force

• Communication is essential to minimize conflict and protect First Amendment rights of the protesters

• Ex: Used during the 1980s & 1990s until the 1999 World Trade Organization protests in Seattle

Command & Control/Miami

Model

• Differs from escalated force b/c it uses a more strategic, cautionary, and control-oriented tactic for using force

• Sets clear and strict guidelines on acceptable behavior with very little negotiation

• Inflexible• Frequently relies on high

levels of confrontation and force in relation to even minor violations of the rules established for the demonstration

• Unforgiving police responses

• More predominant use of force with less-lethal weapons

• Recurrent use of arrests• The establishment of “no

protest” zones• Use of surveillance to attain

information concerning protest activity

• Ex: Miami PD’s reaction to the Free Trade Area of the Americas meeting protests in 2003

Strategic Incapacitation

• Proactive approach in which police implement measures in advance to minimize the prospective impact and scope of a protest

• Might involve preparing a large police force to arrive at a scheduled location of a demonstration before the event begins, or regulating permits for the protest in a manner aimed to redirect the protest

• Means to regulate space and restrict access of areas to protesters

• Creation of “no protest” zones

• Increased use of less-lethal weapons

• Use of barricades and “kettling” techniques

• Strategic use of arrests• Surveillance & Infiltration• Ex: New York City uses this

method

Law Enforcement’s ResponsibilitiesThey have to balance the people’s First Amendment rights to protest and express their views with the concerns of:

Public Safety National Security Order Government Interests

Their obligations include to:

Keep things under control Know how to react quickly and

responsibly if things get out of hand Not to let their own opinions get

involved in the protest that they are involved in monitoring

Stay neutral Protect the constitutional rights of the

demonstrators

How to Protect Your Rights while Protesting

Remain peaceful! Be aware of your surroundings and stay alert Don’t engage in illegal activity Make sure you’re obeying traffic and pedestrian laws Stay where you are legitimately allowed:

Public sidewalks do not require a permit for marches, distributing leaflets, or picketing

You can be on private property as long as you obey the rules the owner sets forth (if you disobey you can be arrested)

All types of expression are constitutionally protected in traditional "public forums" such as streets, sidewalks and parks Additional public locations that the government has opened up to similar

speech activities, including the plazas in front of government buildings Make sure you apply for a permit (in advance) for any event that requires

one such as: A march or parade that doesn’t stay on the sidewalk, and other events that

require blocking of traffic or street closure A large rally that involves the use of sound-amplifying devices; or A rally at certain designated parks or plazas

How to Protect Your Rights while Protesting (Cont.) If your rights are being violated by a police officer… Do not argue with him; it’ll do no

good! Ask to talk to their supervisor and

explain your position to him or her Point out that you’re not disrupting

anyone else's activity and that the First Amendment protects your actions

Keep in mind that if you don’t obey an officer, you may be arrested

However, you shouldn’t be convicted if the court concludes that your First Amendment rights were violated

How to Protect Your Rights while Protesting (Cont.)

Know your rights and don’t be taken advantage of… Governments can impose financial fees as a condition for exercising protest rights such

as application fees, security deposits for clean-up, or charges to cover overtime police costs. Charges that cover actual administrative costs have been permitted by some courts; however, if the costs are greater because an event is controversial (or a hostile crowd is expected), the courts won’t allow the fees.

Counter-demonstrators have free speech rights, too. They have the right to be present and voice their displeasure. But, counter-demonstrators should not be allowed to physically disrupt the event they are protesting. Police are allowed to keep two opposed groups separated, but ought to let them be within the general vicinity of one another.

If you’re not being granted a permit to protest at a particular site and can show that similar events to yours have been permitted there in the past (like a Veterans Parade), then that is an indication that the government is involved in (illegal) selective enforcement. The government is NOT allowed to discriminate against activities because of the controversial content of the message. You have the same right to be heard as anyone else!

Warning: Even if you do everything right…

Obeying all of these principles still doesn’t mean that you won’t be subjected to violations of your rights. However, what it does mean is that you would have done everything right and that the law enforcement/government was entirely in the wrong and that you have a real chance in court to fight it and

stand up for yourself.

History of Protest Movements

Civil Rights Movement (’60s) Vietnam (’60s-’70s)

History of Protest Movements (Cont.)

Seattle WTO (1999)Occupy Wall Street (2011-2012)

IMPORTANCE OF PROTESTSWhy are protests important to society?

“Without debate, without criticism, no administration and no country can succeed and no republic can survive.” – John F. Kennedy

WHAT DO YOU THINK PROTESTING MEANS TO THE WORLD TODAY?

“Protest and anger practically always derives from hope, and the shouting out against injustice is always in the hope of those injustices being somewhat corrected and a little more justice established.” – John Berger

Bibliography

Harvey, Sam. (2013). Human rights in the United States: the war on dissent and how to fight it.

LSA Senior Project Paper.