Freedom Speaks Over the Howl of Anti-Protest Legislation
Since 2017, 36 states have enacted legislation that restricts the right to protest on public streets and rights of way. Such legislation has taken on new life in the aftermath of growing civil rights protests and current Covid-19 vaccination mandates. However, such bills often wrongly conflate the right to engage in sometimes hyperbolic, discordant, or anger-inducing speech with conduct that injures, kills, or maims. The right to protest in the public streets and parks is baked into the very essence of our First Amendment freedoms of speech and assembly, and as these restrictions face challenges in the courts, they dissolve under the withering glare of First Amendment scrutiny.
Legislation that seeks to control the geography, the timing, or the method of speech and protest is constitutionally acceptable, as long as the legislation does not target the content of speech. In First Amendment jurisprudence, statutes enacted at non-speech related activities are called content-neutral. A statute or ordinance is content-neutral if (1) it is directed at behavior that is important to a government function and unrelated to the suppression of speech, (2) it is carefully calibrated to that government interest so that it is not overly broad and otherwise restricts or criminalizes speech that is protected, and (3) if it has a collateral effect on speech, there remain other available means of communicating the message.
For example, imagine a group of people who are fed up with sidewalk scooters and they decide to mount a protest. They choose jaywalking as their messaging tactic and proceed to cross in the middle of busy streets while shouting: “Hey, hey, ho, ho, sidewalk scooters have got to go!” Laws that prohibit jaywalking are, from a free speech perspective, content-neutral. They are designed to ensure the safety of pedestrians, so the protestors could still be fined for jaywalking. The protestors’ desire to transform the action of jaywalking into a message does not magically call the First Amendment into action and thereby shield them from liability for fines imposed for breaking the law. Importantly, they can still organize a protest at city hall or on the sidewalks in front of scooter manufacturers. In other words, their ability to protest has not been greatly affected, only a single medium for messaging has been eliminated from their arsenal.
Legislation that specifically targets speech is a different story.
In the aftermath of a spate of killings of unarmed Black people across the United States in the spring and summer of 2020, Florida’s citizens took to the streets in protest. The protests were largely peaceful and there were no reports of widespread property damage or injuries. Nonetheless, in April 2021 the Florida legislature passed a bill that was signed into law by Governor Ron DeSantis that expanded the definition of riot to include violent and disorderly conduct by three or more persons. To be clear, the First Amendment was never intended to act as a shield against criminal liability for property damage, assault, battery, or murder. Criminal and civil penalties can be imposed on any such activity regardless of whether such behavior was intended to deliver a message. But non-violent protest is not criminal.
In his decision ruling the law unconstitutional, Federal District Judge Walker held the anti-riot law was too vague; it provided far too much discretion to law enforcement to shut down otherwise lawful speech. It was also so broad in scope that undeniably lawful speech and assembly were criminalized. Indeed, under the terms of the statute, mere presence at a protest that had turned violent could subject the bystander to criminal prosecution. Quoting a Supreme Court case that addressed protests of the 1960s, the judge admonished that such “guilt by association is a philosophy alien to the traditions of a free society … and the First Amendment itself.”
More recently, California’s Governor Gavin Newsom signed a bill that restricts protests at vaccination sites. The California law too is unlikely to withstand a First Amendment challenge. The law creates a 100-foot perimeter around the sites. Once a person has entered within that 100-foot perimeter, that person is protected by a 30-foot buffer zone and others may not breach that buffer zone if it is their purpose and intent to obstruct, harass, intimidate, injure, or interfere with a person’s entrance or exit from the facility. Protecting the right of a patient to access a medical facility, whether that be to obtain a legal abortion, or a vaccination is not a matter of free speech. Any conduct that obstructs access or injures a patient is punishable; however, language which might intimidate or harass is likely to be considered part and parcel of the cacophony of protest and disagreement. While the government can, sometimes, limit the geography and method of protected speech, as in the jaywalking example, it can do so only if the limitations are carefully calibrated and do not restrict more speech than necessary to accomplish the goal — in this case, unrestricted access to a vaccination facility. The 30-foot buffer zone is likely too large to be considered an incidental restriction on speech.
The fact is there exists an inherent paradox in our democratic assertion that as human beings we all enjoy an equal right to liberty and the pursuit of happiness in addition to the right to freely speak our minds. Laws designed to limit the discord of disagreement do not strike the constitutional balance required by the First Amendment. Undoubtedly, many of us would like to shut down speech that spotlights choices we would like to keep shadowed, that spreads misinformation, or that otherwise offends our moral sensibilities, but the First Amendment provides the speaker a wide berth to speak, yell, protest, and march all in an effort to get their message heard above the din.
Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. You can follow her on Twitter @LGreenky.
