5 - First Amendment & Freedom to Peaceably Assemble Flashcards
Freedom to Peaceably Assemble
As with with the other first amendment freedoms, peaceful demonstrations (even for extremist ideas) are strongly protected in the United States.
These protections are based on some of the same arguments as those used for freedom of speech and freedom of the press
Edwards v. South Carolina(1963)
187 black students were convicted in a magistrate’s court of breach of the peace for peacefully assembling at the South Carolina State Government. Their purpose was to submit a protest of Civil Rights grievances to the citizens of South Carolina, and to the legislative bodies of South Carolina.
During the course of the peaceful demonstration the police arrested the students after they did not obey an order to disperse. The students were convicted of breach of the peace. After their convictions were affirmed by the state supreme court, the students sought further review. They contended that there was a complete absence of any evidence of the commission of the offense and that they were thus denied due process of law.
Did the arrests and convictions of the marchers violate their freedom of speech, assembly, and petition for redress of their grievances as protected by the First and Fourteenth Amendments?
Yes. In an 8-1 decision authored by Justice Potter Stewart, the Court reversed the criminal convictions of the black students.
It was clear to the Court that in arresting, convicting, and punishing the students the state infringed the students’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.
Lloyd Corporation v. Tanner(1972)
Donald Tanner was a Vietnam War protestor who was distributing anti-war handbills inside Lloyd Center Mall in Portland, Oregon. Lloyd Center was privately owned by Lloyd Corporation, which prohibited the distribution of handbills inside the mall.
While distributing handbills, Tanner and other protestors were informed by mall security that they should stop their distribution or be subject to arrest. The protestors ended their distribution, left the mall, and filed suit against Lloyd Corporation in United States District Court for the District of Oregon alleging their First Amendment right to free speech had been violated. The District Court ruled in their favor.
Were Tanner and the other protestors’ First Amendment right to free speech violated by Lloyd’s refusal to allow them to distribute handbills on mall property?
No. In a 5-4 decision, the Court reversed the Ninth Circuit and held that Tanner was not entitled to distribute handbills within Lloyd Center.
Writing for the majority, Justice Lewis F. Powell contrasted this case withAmalgamated Food Employees Union v. Logan Valley Plaza, which allowed protestors to picket a shopping center when their picketing was “directly related” to the shopping center and no “reasonable opportunities to convey their message…were available.”
Here, Tanner’s grievences were unrelated to the operations of the mall, and the protestors had an alternative on the sidewalks immediately outside the mall, which were owned by the City of Portland.
Powell characterized equating public property with private property intended for public use – such as the mall – as “reach[ing] too far.” Therefore, Tanner and the protestors did not have a First Amendment right to distribute their handbills within the mall
National Socialist Party of America v. Village of Skokie (1977)
The village of Skokie, Illinois had a population of approximately 70,000 persons, of whom approximately 40,500 were Jewish. Included within this population were thousands who had survived detention in Nazi concentration camps.
On March 20, 1977, Frank Collin, the leader of the National Socialist (“Nazi”) Party of America, informed Skokie’s police chief that the National Socialists intended to march on the village’s sidewalk on May 1.
The district court of Cook County conducted a hearing on a motion by the Village of Skokie for a preliminary injunction. The court took the testimony of a number of Skokie residents. One resident testified that a number of Jewish organizations planned a counterdemonstration for the same day with an expected attendance of 12,000 to 15,000 persons, and that the appearance of Nazi demonstrators could well lead to violence. The mayor of Skokie also testified that the demonstration could lead to uncontrollable violence.
The court entered an order enjoining defendants from marching, walking, or parading or otherwise displaying the swastika on or off their person on May 1, 1977. The Nazi Party applied to the Illinois appellate court for a stay of the district court’s injunction; the appellate court denied their application.
On appeal, the Illinois Supreme Court also denied the petition for a stay. The Nazi Party then filed an application for a stay with Justice John Paul Stevens, who referred the matter to the Supreme Court.
Did the Illinois Supreme Court improperly deny the National Socialist Party’s request?
Yes. The Court held that Illinois must provide strict procedural safeguards, including appellate review, to deny a stay for an injunction depriving the Nazi Party of protected First Amendment rights.
Nazi Rally
Nazi Rally, Chicago June 24, 1978
The New York Times/Don Hogan Charles
NAZI RALLY DROWNED OUT: A small group of American Nazis, led by Frank Collin, second from left, gave the raised‐arm salute in Chicago yesterday as they cut the scheduled rally short. More than 2,000 shouting protesters, held at bay by several hundred policemen, pelted group with eggs, rocks and bottles
Counter-protestors
→ The Government has the power of violence
→ thousand of people were against the nazi so police was defending nazis
⇒ Shows why it’s better to let people express bad ideas and let others say that they are bad ideas
Westboro Church
We told you, right after it happened five years ago, that the deadly events of 9/11 were direct outpourings of divine retribution, the immediate visitation of God’s wrath and vengeance and punishment for America’s horrendous sodomite sins, that worse and more of it was on the way. We further told you that any politician, any political official, any preacher telling you differently as to the cause and interpretation of 9/11 is a dastardly lying false prophet, cowardly and mean, and headed for hell. And taking you with him! God is no longer with America, but is now America’s enemy. God himself is now America’s terrorist.”— Fred Phelps, “9/11: God’s Wrath Revealed,” Sept. 8, 2006.
Snyderv.Phelps (2011)
The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, “Thank God for dead soldiers” and “Fag troops” at Snyder’s funeral.
U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment’s protections on religious expression. The church members’ speech is protected, “notwithstanding the distasteful and repugnant nature of the words.”
Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?
Yes. The Supreme Court affirmed the lower court’s decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability.
Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority’s conclusion in the case, “I do not believe that our First Amendment analysis can stop at that point.” Justice Samuel Alito filed a lone dissent, in which he argued: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”
“Unite the Right”
→ Vestiges of confederacy are being removed cf Alabama’s flag had confederacy flag in it until 2 years ago.
Protestors were given a permit to demonstrate against the removal of a statue of General Robert E. Lee from a Park in Charlottesville
Violent confrontations between right wing (neo-nazi) demonstrators and left wing anarchist (antifa) counter-demonstrators led to the rally being declared illegal.
The park was cleared by the police but violence continued as the two groups moved through the city.
These confrontations ultimately led to one white supremacist driving his car into a group of counter demonstrators injuring 35 people and killing Heather Heyer.
James Alex Fields, the driver of the car was sentenced to life in prison after conviction of federal hate crimes
”Free Speech” Rally
Boston ”Free Speech” RallyAugust 19, 2017
Another right wing rally was scheduled to take place in Boston the Following week.
About 50 people attended.
BUT The 50 far-right protestors were met by 30,000 counter-protestors
The First Amendment does not Protect Violent Demonstrations
Over the past few years, there has been a dramatic increase in the number of demonstrations in the US, particularly after the death of George Floyd while in police custody.
Some of the ”Mostly peaceful” BLM protests in 2020 involved violence and vandalism in many America cities, particularly in Portland, Oregon.
Other demonstrations by right wing protesters have also turned violent.
A legitimate debate about how far protestors should be allowed to go, or how much force the police should be allowed to use, has emerged in a country where people do not exercise their right to protest as much as they do in some other countries, and where the police have much less experience in handling large crowds.
♦ Rioters burn police station in Minneapolis MN during George Floyd /BLM protests.
“Stop the Steal” Rally
“Stop the Steal” Rally and March on the Capitol - January 6, 2021
The “Stop the Steal” rally in Washington DC on January 6, degenerated into a violent confrontation between rioters and Capitol police.
Before the attack on the Capitol Donald Trump spoke to the crowd and seemed to be urging them to action.
”If you don’t fight like hell, you’re not going to have a country anymore”.
“It’s going to be wild”
During the demonstration turned riot, protestors shouted, “Hang Mike Pence!”
Peaceful Assembly or Illegal Riot?
As the events of the last few years have demonstrated, it is not always easy to draw a clear line between a peaceful demonstration which is protected by the first amendment, and a violent riot which is not. It is nearly impossible to identify the moment where the first ends and the second begins.
Political considerations play an important part in dealing with these dangerous situations. In the case of Portland, the mayor clearly supported the violent protestors and refused to use police force to stop them.
And on January 6, it seems that the violence was encouraged by the President of the United States himself.
January 6, consequences
Some BLM activists argue that the rioters at the capital were treated more leniently than BLM demonstrators.
More than 800 people have been arrested for or charged with storming the U.S. Capitol building on Jan. 6, 2021, with charges ranging from obstruction of an official proceeding to assault.
87 have been convicted and sentenced, some to up to 5 years in prison.
Many people facing criminal prosecution claim that the Biden administration has been subjecting them to harsher treatment than that given to BLM protestors
First Amendment Conclusions;
“Awful but Lawful”
Freedom of religion v Freedom from religion
There are very few established exceptions to Freedom of speech. These include but are not limited to: Incitement, False statements, Obscenity, Fighting words, Threats, Copywrite and trademark.
Freedom of the press has historically been protected even when national security is involved, but this protection seems to be challenged by the decentralization of information.
Freedom of (peaceful) assembly is considered more important than the emotional harm it sometime inflicts.
