Two weeks after Canadian authorities disbanded Ottawa’s Freedom Convoy protests, the greater Washington area is bracing for American analogs. The People’s Convoy and American Freedom Convoys—totaling hundreds of cars and several dozen tractor-trailers—will arrive in the Beltway region beginning today.
For three contentious weeks, the Freedom Convoy shut down the portion of Canada’s capital housing the country’s loftiest palaces of government. But the American convoys have signaled a different approach, mostly disclaiming intentions of entering our nation’s capital. They plan to instead congregate for two days of rallies at the Hagerstown, Maryland, Speedway, just outside the District of Columbia. That decision is rooted in a baseless conspiracy theory that the Jan. 6, 2021, insurrectionists were targeted and entrapped by federal agents. While the theory is demonstrably wrong, it does contain a kernel of insight: American judges, legislators, and law enforcement officers often neglect the right to protest at our seats of power. But that is exactly where officials should be most solicitous of the First Amendment rights to peaceably assemble and to petition the government for redress of grievances.
Start with the Capitol. More than 300 peaceful protesters were cited or arrested at the Capitol complex in 2020 alone. Their offenses included chanting on the rotunda steps, playing guitar in a Senate office building, and holding up a sign at the visitor center. Recent mass arrests include the nearly 600 women arrested in 2018 protesting Trump administration immigration policies and the over 400 demonstrators arrested in 2016 protesting money in politics. In 2017, now-Sen. Raphael Warnock was among a group of pastors arrested while singing and praying during a protest of the proposed repeal of the Affordable Care Act. The resort to arrests in these cases is especially troubling after the Jan. 6 insurrection, when only 14 rioters were arrested and Capitol Police officers were specifically instructed to show restraint in their crowd control response.
Across First Street, protesters outside the Supreme Court face rigid restrictions on where they can assemble. While the Supreme Court struck down provisions of a 1949 law prohibiting protests on the public sidewalk across the large open plaza that foregrounds the court’s columned façade, it has remained silent on First Amendment activity taking place on the plaza itself. Stepping into that void, a lower court held in 2013 that the plaza restriction was “unreasonable, substantially overbroad and irreconcilable with the First Amendment.” But the D.C. Circuit reversed that decision and the Supreme Court declined to hear the case, leaving the plaza off-limits for expressive activity. Critics on the right and left have opposed the decision’s legal basis and Congress’ failure to repeal the law.
The courts have not been much better when it comes to protests in front of the White House. The leading case is Clark v. Community for Creative Non-Violence, decided by the Supreme Court in 1984. The case dealt with a planned protest in Lafayette Square—the park directly in front of the White House. The organization sought to protest rampant homelessness by having hundreds of homeless individuals sleep in tents overnight in the middle of winter to demonstrate the cruel reality of homelessness. The organization had carried out a similar protest the year prior without incident or damage to the square. Nonetheless, the Supreme Court ruled against the protesters, crediting the National Park Service’s contention that banning protesters overnight was necessary to preserve the square’s attractive aesthetic condition. Commentators have attacked the decision as woefully unattuned to protesters’ First Amendment rights.
Similar problems remain relevant today. Federal officers escaped liability for the violent clearing of Lafayette Square with pepper balls to erect a fence during the 2020 Black Lives Matter protests, although the court did allow an equitable claim for access to the square to proceed. At the state level, Tennessee criminalized last year overnight protests on the state Capitol grounds in Nashville. Camping even for a single night on the green space in front of the legislature is now a felony carrying a prison sentence of up to six years. Similar legislation has recently been introduced in South Carolina, Oklahoma, and Kentucky.
Of course, there remain important limits on such protests that are rightly enforceable. The mounting charges against the insurrectionists for their violent invasion of the Capitol are the most obvious examples. And Canadian officials were in some aspects too lenient in their handling of the Freedom Convoy, like allowing nearly immovable trucks into the downtown core and initially doing nothing to limit the honking horns that tormented local residents.
But American institutions often err too far in the other direction. One need not agree with the convoys’ messages or their founders’ views to recognize the importance of protest at the loci of governmental authority. A long American tradition supports that recognition, harkening back to the late-night protest at the Boston Custom House that culminated with the Boston Massacre. Late-breaking reports yesterday indicated that some truckers might break off from the main convoy and venture to the White House today. Should they do so, they—not their trucks—are entitled to the full panoply of peaceable assembly and petition protections.
If First Amendment protest rights are to mean anything, they must mean that the people can speak directly to those they have entrusted with power.