Jurisprudence

We’ve Neglected the Freedom of Assembly for Years Before Portland

William Barr and his backers have taken things to an unprecedented level, but the groundwork has been laid for a century.

A protester wearing a mask and helmet holds up a fist amid a crowd of others.
People gather in protest in front of the Mark O. Hatfield federal courthouse in Portland, Oregon, on Tuesday. Spencer Platt/Getty Images

The First Amendment prevents the government from doing a whole lot of things. We tend to focus on the freedom of speech, but the First Amendment also protects other, equally important freedoms, among them, “the right of the people peaceably to assemble.” The right to assemble, protest, and gather is the neglected younger sister to the free speech clause. As the Supreme Court lavishes attention on commercial speech and money as speech and religious signage and union dues and cake baking as speech, the freedom to gather and protest is often forgotten.

But this spring and summer, as protests broke out across the country initially in response to the police killing of George Floyd, a Black man, and increasingly in response to government crackdowns on protest itself, we are left with the grim prospect of protesters without much legal protection, despite the First Amendment. This much was plain to see in two congressional hearings on Tuesday, in which thousands of peaceful demonstrators were dismissed as anarchists and mobs, both by Republicans in Congress and by Attorney General William Barr.

The first hearing, before the House Committee on Natural Resources, was about what transpired on June 1, when government officials assaulted protesters in Washington’s Lafayette Square. Adam DeMarco, a major in the D.C. National Guard, testified that he saw what he deemed excessive force used to clear peaceable protesters outside the White House immediately before President Donald Trump’s photo opportunity at St. John’s Church. DeMarco testified that inaudible warnings to clear the park were issued at 6:20 p.m. and that even though a curfew was set for 7 p.m., at 6:30 he witnessed a clearing operation that included “explosions” and smoke he was told was “stage smoke,” which he recognized from his own military experience as tear gas. He said he later “found spent tear gas cannisters on the street nearby.” DeMarco described the people targeted as “demonstrators—our fellow American citizens—engaged in the peaceful expression of their First Amendment rights.”

Testifying immediately before DeMarco, though, acting U.S. Park Police Chief Gregory Monahan insisted that what he had seen in the same park was some of the “most violent protests that I’ve been a part of my 23 years of the United States Park Police,” and that the police were responding to “severe violence from a large group of bad actors” including arson, vandalism, and injuries sustained by more than 50 officers. He insisted that the surge of official violence to clear the park that happened at 6:30 p.m. needed to occur in a crowded park with almost no warning because protective fencing had to be installed around the perimeter and that the president’s walk to the church at that hour was pure coincidence. In response to multiple videos of police in riot gear assaulting unarmed protesters with bats and shields, and footage of an Australian TV crew punched and assaulted, Monahan insisted that the footage represented merely “a moment in time,” and that violent protesters had bats, boards, water bottles, and bricks that they were using against law enforcement. Monahan concluded that the Park Police had exercised “tremendous restraint” in clearing the protesters, although he conceded there were no incidents involving attacks on officers that day, save a single assault after the violent clearing began.

In a separate hearing held the same day, Attorney General William Barr was testifying before the House Judiciary Committee for the first time in more than a year. He had said he was the one who gave the order to clear the park in June, and during the hearing, he characterized the scene at Lafayette Square as “unprecedented rioting around the White House.” He also urged that the timing connected to Trump’s photo shoot was a coincidence. Barr described what is widely acknowledged as weeks of peaceful racial justice protests in Portland, Oregon, as a moblike siege by “violent rioters and anarchists” against a courthouse, which includes the use of lasers, pellet guns, and slingshots against federal officers. (The New York Times could not confirm the use of those weapons.) Barr declared that “what unfolds nightly around the [Portland] courthouse cannot reasonably be called a protest; it is, by any objective measure, an assault on the government of the United States,” although he could not explain why protests in Michigan by armed white men that included overt threats of lynching the governor were not a mob. (Barr claimed he did not even know of the Michigan protests.) Chillingly, he insisted that while tear gas and violence were not appropriate responses to peaceful protesters, “the problem when these things sometimes occur is, it’s hard to separate people.” Barr claimed that unmarked vans were used on protesters so that they could “pick them up where there was less of a risk to this mob response.” He further claimed there could be probable cause for law enforcement officers to arrest and detain innocent protesters simply because they had been standing next to someone else suspected of using a laser against law enforcement, or because “it could mean the person ditched the laser.” A peaceful protest thus reverts to a violent mob if one person throws a water bottle or if unarmed protesters fail to clear the perimeter when told to disperse. “It is appropriate to use tear gas when it’s indicated—to disperse an unlawful assembly,” the attorney general of the United States said.

In other words, in Barr’s hands, the freedom of assembly is transformed to mass guilt by association. Neither he nor Monahan could explain when and how one protester hellbent on violence turns an entire peaceful protest into an angry mob, or why a thrown water bottle should be met with pepper spray. And never you mind that Barr is virtually alone in his view of what happened at Lafayette Square. Trump’s own former Defense Secretary James Mattis has blasted the administration for its treatment of the D.C. protesters, calling the June 1 event a “bizarre photo op.” Chairman of the Joint Chiefs of Staff Mark Milley later said it was a “mistake” for him to participate in the walk to the church. Former DHS Secretary Tom Ridge has decried the use of federal law enforcement authorities in Portland as “pouring gasoline on a fire” and emphasized that “preserving the right to dissent is something very important,” and that “you can’t justify the violence” that has accompanied those protests. Michael Chertoff, who served as secretary of homeland security under President George W. Bush, has written that what DHS is doing in Portland is wildly inappropriate:

Videos reveal agents operating in camouflage uniforms with no clear identifying insignia. That may be appropriate combating transnational drug gangs in a border environment, but not in American cities. Other videos and reports make clear that even peaceful demonstrators—such as individuals identifying as military veterans—were struck with nonlethal projectiles and strong tear gas. And there was no respect for, or coordination with, the wishes of local authorities.

Perhaps in response to the widespread horror from virtually everyone who is not currently serving in the Trump administration, Oregon Gov. Kate Brown announced Wednesday that federal forces would be withdrawn from the city of Portland.

But even if Barr stands alone, with only the president and DHS officials sharing his views of what the right to protest actually means, the retreat from Portland isn’t without consequences.  In perhaps the most alarming development on Tuesday, Dara Lind at ProPublica reported that federal authorities in Portland have been arresting protesters for offenses “as minor as ‘failing to obey’ an order to get off a sidewalk on federal property” then advising them that they are “specifically barred from attending protests or demonstrations as they await trials on federal misdemeanor charges.” While one of Lind’s experts describes these orders as “sort of hilariously unconstitutional,” it’s manifestly clear that Barr’s claim that the mere act of standing next to someone holding a weapon, or failing to obey an order to disperse, means you are part of an unlawful assembly has now been used by federal prosecutors to prosecute participants and also to explicitly chill any future protest. That renders the peaceable assembly clause of the First Amendment a shell of a freedom, an alarming new phase in its overlooked status.

It hasn’t always been this way. As Drexel University professor Tabatha Abu El-Haj explained in her 2009 article “The Neglected Right of Assembly,” “the existence of a right of peaceable assembly was not controversial at the founding because it ‘was a traditional right of English freemen.’ ” Despite crowded cities and worked-up mobs, until the late 19th century, it was widely understood that “street politics” demanded the right to protest, gather, assemble, and shout on busy streets and parks. As Abu El-Haj explains it, that included bonfires and toasting and rowdiness and feasting, and all of that street gathering was deemed a central, and essential, feature of civic political life. And as she notes, so widely accepted was the fundamental right to gather and protest that it was “included virtually without comment in the First Amendment.” Moreover, “in the first United States Congress a discussion of the proposed Bill of Rights amendment [regarding assembly] was declared beneath the dignity of the members.”

There was very little case law, or even academic writing, about the right to assemble, and it was also widely understood that while the state could prosecute those who behaved criminally at public rallies, rallies themselves were integral to democratic freedom and the free exchange of ideas. This all changed, Abu El-Haj explains, only in the late 19th century, when courts began to permit all sorts of licensing requirements on public assemblies. Today, it’s simply understood and accepted that demonstrations require paperwork and permits and state discretion as to “time, place, and manner” constraints, and as she notes, in this century, “maintaining order, preventing traffic jams, and ensuring security are all considered significant governmental interests.” We have, in short, acceded to a regulatory regime that forces protesters to both seek government permission to assemble, and then to be at the mercy of state claims about potential lawlessness, rioting, inconvenience, or traffic, when the government seeks to quell protest. As Abu El-Haj points out, “we have replaced the notion that the state can only interfere with gatherings when they disturb the peace, with a legal regime in which the state is permitted to regulate in advance (by confining to certain spaces or times) assemblages that are both peaceful and not inconvenient.” Garrett Epps explains here that red states have been expansively regulating protest and protesters for years now, culminating, as he writes, in a grotesque opinion out of the 5th U.S. Circuit Court of Appeals last year, approving the principle that “anyone who organizes a protest can be sued—and thus possibly bankrupted—if someone else present commits an illegal act.” That is why this summer we have seen enforcement officers justifying the use of tear gas on peaceful protesters on the grounds that they don’t want to wait around to see if violence will ensure. That is essentially Barr’s claim as well. And the larger the protest, the greater the chance for individual bad actors to act out, the less likely warnings to disperse will be heard, and the more likely arrests, and federal bans on future protest, will occur. In other words, as protests grow and spread, regardless of conduct, the more certain Barr’s vision of all protests as inherently dangerous mobs of anarchists will become.

What the centurieslong failure to protect a robust right to assemble and demonstrate means is that we now gather to protest at the sufferance of local authorities. And the testimony of the attorney general on Wednesday signals that federal authorities will not wait to be invited to crack down on protest either. Arrests of protesters on pretext that lead to agreements not to protest in the future are perhaps the best signal that the First Amendment right to assemble is not nearly as robust as we might have believed.