The First Amendment’s Right to Protest

We’ve heard a lot of talking heads talking about, and seen a lot of media writers writing about, and a lot of protesters making claims about, a “Right to Protest” which they blithely pronounce is guaranteed by the First Amendment. This got us running to our handy portable copy of the Constitution and Bill of Rights. We could not recall ever seeing a “Right to Protest” in the First Amendment, although having read it many times. Here is the First Amendment; it’s pretty short:

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.

The first thing to note is the first part of it: “Congress shall make no law…” It’s about what the federal government can’t do. It shall not (1) establish a religion, (2) prohibit the free exercise of religion, (3) restrict freedom of speech, (4) restrict freedom of the press, (5) restrict the right of the people to assemble peaceably, or (6) restrict the right of the people to petition the government for redress of grievances. It’s unclear whether #5 and #6 go together or are two different things. That darned comma after “assemble” makes it unclear. Regardless, it all only prohibits what the federal government can do. We should note, however, that the Fourteenth Amendment extended the First Amendment to state governments. Either way, it doesn’t apply to private citizens and businesses unless employed by and acting on behalf of the government or operating under the auspices of (i.e. licensed or funded by) the government.

So, where is the Right to Protest? Since it isn’t expressly stated in the First Amendment, it must somehow be inferred from something that is. We think it must come from #5 and #6, the right to assemble peaceably and petition for redress of grievances. For those who don’t know, “redress” does not mean “dress again”. It means, “remedy (or fix) an undesirable or unfair situation”. For those who don’t know, “petition” means “a formal written request made to an authority or organized body”. It doesn’t actually have to be in writing unless required by the rules of the authority or organized body, such as a court of law. In common parlance, “petition” basically means “to ask for something”. So, while there is no “Right to Protest” there is a “Right to Assemble (Peaceably) and Petition for Redress” which seems to be what most protesters are aiming for. We’ll address the missing “Peaceably” element later.

If you can hang your hat on one right, such as “Right to Assemble and Petition for Redress”, why not go for two or three? What about Freedom of Speech and/or Freedom of the Press? Protesters often speak (and shout and scream) and carry signs (and banners and things that might be called symbolic objects, like effigies) while protesting. There ya go! As long protesters are talking or shouting about something, and/or carrying signs or banners about something, they would arguably be exercising Freedom of Speech and/or Freedom of the Press. We think, however, that Freedom of the Press is a bit of a stretch. Most of the signs and objects we see aren’t produced by any sort of printing press.

What about a protest that includes violence such as destruction of property or injury to persons? Some protesters who were interviewed by the hard-charging free and unbiased press asserted that violence is a form of speech. Say what? Well, thanks to misguided judicial pronouncements of the ’60s, they actually have a legal point. The definition of “speech” was bloated by the Warren Court to encompass various types of nonverbal conduct. The Court, after scratching its collective head and humming mantras over what to do about people burning the flag and their draft cards, dreamed up the concept of “symbolic speech”. Suddenly, all sorts of conduct, including criminal conduct, became protected by the First Amendment’s prohibition against restricting freedom of speech. Henceforth, people could avoid going to jail for committing crimes by claiming their conduct was symbolic speech and, therefore, protected by the First Amendment. Breaking windows and stealing smartphones becomes symbolic speech in furtherance of a protest seeking redress for grievances about being held under the thumb of white male capitalists and being selectively prosecuted and being denied the fruits of opportunity promised by America, the Land of Freedom and Opportunity because of one’s race, ethnicity, or sexual identity. Setting fire to police officers and their cars is symbolic speech in furtherance of a petition to redress unequal and unfair justice due to the racism embedded in the criminal justice system and the use of excessive force by law enforcement officers in the enforcement of the law.

Now, what about that word, “peaceably”? The First Amendment refers to the “right of the people to assemble peaceably“. The only thing we can figure out is that maybe, arguably, “peaceably” isn’t really mandatory, like the other wording in the Amendment. Maybe, arguably, it’s only a guideline. After all, it’s rather subjective. What’s peaceable to one person may be offensive or even violent to another. Yet, we can’t help thinking of things people often say about “rights”. Things like, “Your rights stop where my rights begin”; and, there’s no right to yell, “Fire!” in a crowded theater, much less start a fire in a crowded theater; and, “You’re free to burn down your own house, but not mine!” Let’s consider what’s actually a somewhat nonviolent form of protest. We think the question of whether such statements are valid or not should be addressed in another essay. This one is getting rather long.

Do protesters really have the right to block a public thoroughfare when it violates the right of drivers of all colors, races, social status, and sexual identity to get where they need to be? Does that mean I can park my car in the middle of the street and hold up a “Ban the Police!” sign and not get arrested? If not, then how many people of what color, race or sexuality need to join me in order to qualify as a “protest” that’s protected by the First Amendment so we can’t be arrested or hosed? When there’s a large park adjacent to the road, how does it violate the protesters’ rights if they’re required to camp in the park instead of on the street? Oh, right, “symbolic speech”. Blocking traffic is “symbolic speech” representing a petition to redress a grievance about, maybe, air pollution and global warming. But, um, what does it represent with respect to systemic racism? Oh! I get it! It’s symbolic of the highway to prison that minorities find themselves on, in contrast to WASPs who are given a walk in the park! And by blocking it we are symbolically petitioning the government to redress our grievance about it! Yes!

There you have it! The First Amendment’s Right to Protest! And even the right to camp on the highway.

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