What Should We Think About Anti-Protesting Laws? | Professor Sarah Burns

Less than three months into a new presidency, the nation has seen two travel bans (involving a great deal of controversy around both); tense meetings with foreign allies; accusations of collusion with Russians; accusations of wiretapping; and a long anticipated health care bill that was DOA. It’s easy to be so exhausted by the national news that you’ve failed to look at what’s happening at the state level: but you should.

Right now, in at least 17 states, lawmakers have introduced bills that would restrict protesting in a variety of ways. As Christopher Ingraham reports at Washington Post’s Wonkblog, “From Virginia to Washington state, legislators have introduced bills that would increase punishments for blocking highways, ban the use of masks during protests, indemnify drivers who strike protesters with their cars and, in at least once case, seize the assets of people involved in protests that later turn violent.”

These bills come as no surprise. Fatal police shootings in Ferguson, Charlotte, and Tulsa, sparked protest and the development of Black Lives Matter with an events page on its website to help people organize. Trump’s election prompted several protests both domestically and internationally. Many organizations advertised protests and donations campaigns aimed to counter his travel bans.

For some, this represents the public airing of grievances enshrined in the First Amendment to the Constitution. In case you don’t have your pocket Constitution handy, the First Amendment guarantees the right to assemble (protest). As a refresher, here it is:

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.

Thanks to the incorporation doctrine, which applies selected provisions of the Bill of Rights to the states, the First Amendment also applies to the states. This does not, however, stop state legislatures from trying to pass bills limiting the right to free assembly.

What could possibly spur lawmakers to try to restrict a fundamental right, you may wonder? They claim it’s a concern for safety. Violent protests in Ferguson and Charlotte certainly caused a great deal of property damage and fear. The possibility that organizations have deployed “professional agitators” to create disorder and chaos also motivates lawmakers.

But when lawmakers cite public safety, citizens should always stand up and listen. Are they truly concerned about public safety? It’s important to ask because lawmakers often come up with clever ways of passing unconstitutional regulations without sounding like they’re trying to restrict rights unnecessarily. Federal and state governments reserve the power to break up violent protests, for example. They can put restrictions on their time, place, and manner. Some states even have laws restricting protests at funerals and regulating protests around abortion clinics.

These types of restrictions, in theory, demonstrate an effort to balance freedom of assembly with concerns over public safety. But using “public safety” as a reason to license government action can be very dangerous. “Public safety” caused Roosevelt to intern the Japanese during World War II. “Public safety” caused countless arrests of peaceful protesters during the Civil Rights Era. “Public safety” caused “enhanced interrogation techniques” during the War on Terror.

Safety and freedom do not always sit well together. In a free society, the people have the constitutionally-protected right to protest the government and the press can report on leaked documents even if they might compromise national security. In a free society, the government cannot keep us entirely safe from foreign and domestic threats thanks to freedom of movement and the right to bear arms. If governments can make a good argument for restricting liberty in a time of crisis, we should accept them…cautiously. There are times when the government has to restrict civil liberties to increase our safety. This isn’t one of them.

Sarah Burns is an Assistant Professor of Political Science at the Rochester Institute of Technology. She received her Ph.D. from Claremont Graduate University in 2013. Her research examines the intersection… read more


Article by Sarah Burns, Assistant Professor of Political Science at the Rochester Institute of Technology. Originally published at www.learnliberty.org.