With rising calls for violence, where’s the line between protected assembly and prohibited violence?

With rising calls for violence, where’s the line between protected assembly and prohibited violence?

Is Saying “No Justice, No Peace” Protected By the First Amendment?

Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the government for a redress of grievances.[1]

On July 27, Dirk DeJonge, an avowed Communist, spoke at a public meeting held at 68 Southwest Alder Street in Portland, Oregon.  The meeting was called to protest against illegal raids and shootings by Portland police. DeJonge urged the 300 attendees to resist the police.

While DeJonge was speaking, the Portland Police broke into the meeting hall, and arrested DeJonge and several others. DeJonge and others were charged with “unlawfully and feloniously presid[ing] at, conduct[ing], and assist[ing] in conducting an assemblage of persons” which advocated “criminal syndicalism and sabotage.” Criminal syndicalism” was described as “the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”

The year was 1934. With some American cities exploding with riots and violence, and federal, state and local law enforcement struggling to permit free expression while preventing murders and property damage, was this the law they should apply? The U.S. Supreme Court had upheld California’s criminal syndicalism law less than ten years before.[2]

The Portland convictions went to the Supreme Court, which struck down the conviction and the Oregon statute: “The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental. … The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”[3]

What about the First Amendment’s limitation: “the right of the people peaceably to assemble”? Violence is never protected by the First Amendment, under any justification, even as a “political” act.

But a new report[4] finds that one-third of Americans would see violence as “justified” after the November elections “if the other side wins.” And protests across the country are increasingly violent, as protestors and counter-protestors share tactics, travel to join protests, and attack others.[5] Gabriella Coleman, an anthropologist at McGill University who specializes in online activism and social movements, told the Washington Post that the current protests are moving “the needle of what is considered a peaceful protest.”[6]

So, where’s the First Amendment line between peaceable and violent? Under both modern and traditional jurisprudence, that line is very tolerant, but fairly-well established. Protestors can advocate violence, but not incite, organize, direct, support, or engage in it. “The mere abstract teaching of the moral propriety … [of] a resort to force and violence[] is not the same as preparing a group for violent action and steeling it to such action.”[7]

 In 1969, the Supreme Court protected a Ku Klux Klan leader who was charged under Ohio’s criminal syndicalism statute for holding a meeting at which firearms were displayed, advocating a march on Congress and state capitols, and saying “it’s possible that there might have to be some revengeance taken.”[8] In 1973, the Court protected a college student who said “we’ll take the f__king street again”, because it “amounted to nothing more than advocacy of illegal action at some indefinite future time.”[9]

And in 1982, the Court found that Charles Evers’ threats of violence against those who refused to boycott white businesses was protected speech: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”[10]

Just saying “No Justice, No Peace,” seems to fit comfortably within the American tradition of forceful advocacy. It takes a further step to break the “peaceable” nature of an assembly or meeting, such as organizing for, inciting, preparing for, or supporting violence itself. “Tear down the gates”? Protected. “Here’s a crowbar”? Not protected. Stockpiling weapons or fireworks for “defensive” purposes? Not protected, and an indicator of organizing violence.

It’s the close connection between words and violent (or threatening) deeds that removes the speech or conduct from First Amendment protection. “We think speech tending to organize a riot might thus include communicating with prospective participants about logistics, arranging travel accommodations, or overseeing efforts to obtain weapons needed to carry out the planned violence.”[11]

Stated slightly differently, in the service of organizing violence, the First Amendment does not protect “concrete aid. For, by the time speech reaches the point of organizing a riot, it has crossed the line dividing abstract idea from material reality, even if its components must still be brought together, coordinated, arranged, or otherwise structured into form. In other words, speech tending to organize a riot serves not to persuade others to engage in a hypothetical riot, but rather to facilitate the occurrence of a riot that has already begun to take shape.”[12]

So what about “No Justice, No Peace”? Without more, protected. What about those rapidly-evolving additions such as “Take it to the streets!” Again, without more, protected. Writing it on Facebook? Protected.

Written on a Molotov cocktail? Not protected.

[1] U.S. Const., amend. I.

[2] Whitney v. California, 274 U. S. 357, 371 (1927) (“a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.”).

[3] DeJonge v. Oregon, 299 U.S. 353, 364 (1937).

[4] Larry Diamond, Lee Drutman, Tod Lindberg, Nathan P. Kalmoe, Lilliana Mason “Americans Increasingly Believe Violence is Justified if the Other Side Wins,” Politico, October 1, 2020, https://www.politico.com/news/magazine/2020/10/01/political-violence-424157.

[5] Marissa J. Lang, “After 100 days of demonstrations, more radical protest tactics are likely here to stay,” The Washington Post, Sept. 5, 2020, https://www.washingtonpost.com/local/protest-tactics-dc/2020/09/04/81a82cfa-ee74-11ea-99a1-71343d03bc29_story.html.

[6] Id.

[7] Brandenburg, v. Ohio, 395 U.S. 444, 446 (1969).

[8] Brandenburg, 395 U.S. at 449.

[9] Hess v. Indiana, 414 U.S. 105, 108 (1973).

[10] NAACP v. Claiborne Hardware, 415 U.S. 886, 928 (1982).

[11] U.S. v. Miselis, U.S. Ct of Appeals for the Fourth Cir., No. 19-4550, 4551, Aug. 24, 2020, slip op. at 26, https://www.politico.com/f/?id=00000174-21ba-d006-a7f4-e1bf41e80000.

[12] Miselis, slip op. at 26.