Republican legislators have a new favorite tactic in waging the culture wars. Red states have passed a series of laws that outsource enforcement to private citizens on hot-button issues like abortion and equal protection. By unleashing legal bounty hunters, these laws create an end-run around constitutional review and “institutionalize opposition to fundamental rights.” The most controversial is Texas’ S.B. 8, which effectively outlawed abortion in the state.
The Supreme Court will soon render a decision on S.B. 8, and experts expect that at least one challenge to the law will be allowed to proceed. Meanwhile, Friday’s verdict in Kyle Rittenhouse’s murder trial highlighted another constitutional right suffering at the hands of private citizens: the freedom of assembly.
That freedom is guaranteed by the First Amendment, which prevents discrimination on the basis of viewpoint. So, despite what repeated instances of police violence against protesters might suggest, the police cannot punish protesters for protesting police killings. But what if police stand by while private so-called militias attack and intimidate protesters, forcing them to flee and causing others to stay home? That happened time and again during last year’s Black Lives Matter protests, without repercussion for the police. The result is a system in which vigilantes armed with assault rifles and uniformed in combat gear can trample protesters’ rights with government endorsement.
The culprit is the First Amendment, which protects only against governmental abridgments of rights. The so-called state action requirement means that, for better or worse, the First Amendment does not prohibit private abridgments of speech or assembly rights. It also doesn’t stop the government from approving or acquiescing in a private citizen’s actions, or a private citizen from acting to achieve the government’s goals. That makes it difficult to hold the government accountable for rights violations it supports.
Rittenhouse’s acquittal intensified lingering concerns about Kenosha police’s support for the vigilantes and private militias roaming the city’s streets that night. A livestreamer captured a law enforcement officer thanking Rittenhouse’s group and giving them water bottles 15 minutes before Rittenhouse fatally shot two people and wounded a third. “We appreciate you guys, we really do,” the officer says. Another video captured a militiaman recounting a purported conversation with police. “You know what the cops told us today?” the man recounts. “They were like, ‘We’re gonna push ’em down by you, ’cause you can deal with them and then we’re gonna leave.’ ” Kenosha’s police chief denied deputizing private citizens to assist with controlling the protest.
Such denials have become commonplace following similar accusations against police departments nationwide. Yet militias have gathered under the “thin blue line” flag (signifying solidarity with police), enjoyed friendly treatment from officers (including tips and encouragement), and assaulted counterprotesters while police watched (and did nothing). All this has blurred the lines between police and militia. Sometimes there are no lines. Recently hacked membership lists and emails from the Oath Keepers, a prominent far-right anti-government militia that played an extensive role in the Jan. 6 insurrection, showed that many active-duty officers in New York City, Los Angeles, Chicago, Pennsylvania, and New Jersey are part of the organization.
Republican-controlled state legislatures have forged a comparable path on the policy front, enacting a rash of anti-protest legislation in recent years. Florida, Iowa, and Oklahoma granted immunity to drivers who run over protesters in certain circumstances, worrying advocates that extremists might mow down protests composed of marginalized groups and political enemies. A bevy of other states proposed but failed to pass similar legislation.
As government support for vigilantes grew, vigilante targeting of protesters exploded. Rallies and protests have been repeatedly canceled under looming threats of violence. By one count, militias and similar far-right actors showed up at approximately 500 protests last year, where they were responsible for 64 assaults, 38 cars driven into demonstrators, nine firings of guns at protesters, and 387 other instances of intimidation. There is reason to worry things will only get worse in the wake of Friday’s verdict.
The S.B. 8 analogy has limits. Unlike Texas’ citizen-prosecutors, vigilantes who assault protesters are subject to civil and criminal sanctions, at least when they are caught on camera and can be identified. But the disincentive of civil liability fades when defendants are valorized by an entire political flank. GOP congressmen are already fighting to hire Rittenhouse as his legal defense fundraising tour kicks off. And Friday’s verdict shows the constraints of criminal prosecutions in the chaotic realm of protest clashes. That is not to say that Rittenhouse was wrongly acquitted—there is good reason to think the jury got it right, including serious errors by the prosecution and the heavy burden of proof for obtaining convictions in such cases.
Regardless, narrow avenues of recourse against individual citizens do little to address the broader issue of police-sanctioned harassment. More promising are the lawsuits that the Kenosha victims and their families have brought against Kenosha officials for conspiring with the militias to curtail protesters’ rights. But again, prevailing on claims against the government rooted in the misconduct of private actors is notoriously hard. That is precisely the point of letting vigilantes “deal with” protesters.
What options does that leave for protecting peaceful assemblies? One is the panoply of state laws that regulate militia activity. Officials in Charlottesville, Virginia, used these laws after 2017’s disastrous Unite the Right rally to prevent certain militias and far-right groups from returning to the city. But the laws vary widely by state, making protections contingent on a protest’s location. And they require local officials willing to use them, rendering the solution part of the problem for many.
Another possibility is preventing militias and extremist groups from carrying guns at protests. Evidence shows that the presence of guns makes protests more dangerous. A major pending Supreme Court case might hinder a gun-focused lawmaking approach. But even a ruling recognizing a Second Amendment right to carry guns outside the home would not necessarily prevent regulation of armed groups in public.
While the problem of vigilante illiberalism has worsened recently as our political climate has deteriorated, it is not new. Historians situated the Rittenhouse acquittal within a long tradition of impunity for violence against victims fighting for racial equality. The long line of First Amendment chilling effect cases traces back to civil rights era decisions grounded in the threat of private retribution against activists. In those decisions, the Supreme Court insisted that the government could not facilitate the restriction of First Amendment freedoms by private third parties. Continued commitment to that principle is urgently needed.