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What Kinds of Protest are Protected in the U.S.?

In light of nationwide Black Lives Matter protests, what does our right to assemble ultimately cover?

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The right to assemble is one of our most treasured civil rights as a democratic constitutional republic. It is one of the ways that everyday citizens in the United States can make their voices heard and unified, as they gather to protest or express other ideas. At the same time, this right has many restrictions. Laws regarding the right to assemble can vary by state and city, but generally follow the same basic guidelines.

Guidelines and Restrictions

The First Amendment directly protects citizens’ right “peaceably to assemble,” as well as the right to petition the government for change. It states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While America has recently seen violent protests and riots, this is not protected in the Constitution, which only allows for peaceful gatherings.

At the same time, courts have recognized the right of government to place restrictions on the time, place, and manner of peaceful assembly when it comes to the common good. In general, unlawful protests do not fall under protections granted by the First Amendment. This is why some cities and entire states like Minnesota, Indiana, Washington, Iowa, Michigan, and North Dakota recently began to propose laws allowing law enforcement to shut down protests for blocking traffic. The reasoning behind these proposals is that protesters blocking roads interferes with the freedom of movement for other citizens. Still, critics like the American Civil Liberties Union have called these laws anti-First Amendment bills.

Case Study: The Capitol Hill Autonomous Zone (CHAZ/CHOP)

In June 2020, groups of protesters united and occupied a six-block area of Seattle’s Capitol Hill area. Initially claimed by Antifa and Black Lives Matter protesters, hundreds of individuals began to flow into the small area. The group initially proclaimed the area CHAZ (Capital Hill Autonomous Zone), but later changed the name to CHOP (Capitol Hill Organized Protest). The protesters declared themselves independent from the city of Seattle, sparking debate as to whether this had taken the freedom of assembly to unwarranted levels.

Seattle Mayor Jenny Durkan and President Trump argued over whether CHAZ was a valid form of protest. Republican lawmakers introduced bills blocking federal funding to cities that allow similar occupied zones. Mayor Durkan called the occupiers “patriots” for trying to find new ways to push for police reform, while Trump said the zone had been taken over by “militant groups.” Eventually, CHAZ was cleared by the police, after a series of violent incidents where underage teens were killed or seriously injured by gunfire.

Who Decides Our Rights?

Our rights as Americans when it comes to assembly are strongest in traditional public forums like streets, parks, and sidewalks.

“Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” – Associate Justice Owen Josephus Roberts.

Private property owners can set restrictions on the speech in their property, and most cities require demonstrations to register for permits ahead of time. Permits are not meant to be denied based on the content of the event. Unfortunately, many cities have abused this protection by denying assemblies in the name of public safety. Orders to disperse by law enforcement must be upheld if legitimate. Generally, valid reasons to stop a protest are to preserve and keep the peace, to prevent the outbreak of violence, and to avoid the blocking of traffic, businesses, emergency services and so on.

The consequences of not dispersing typically need to be indicated to the protesters before arrests are made, such as threats of arrests or less-than-lethal crowd control. Ultimately, all of these protections and restrictions will be judged by law enforcement, but the right to assemble still has not wavered despite this massive legal gray area.

Jose Backer, General Assignment Reporter, is a graduate of St. Michael's College and is currently pursuing a Master's Degree in Political Science. Born and raised in Southern California, he currently resides in the Pasadena area.

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