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The Chicago G8/NATO Summits and the ‘Neglected Right of Assembly’

In advance of this spring’s summits, the city moves to close holes in its regulation of public protest. The process hasn’t always been so fine-tuned, one legal scholar argues: the intensive regulation of assembly arose in the second half of the nation’s history.

Chicago protest march

 

The hippies at Crain’s weigh in on the G8/NATO protest ordinance:

Mr. Emanuel also is sending the wrong message with his plan to address demonstrations. Doubling the fine for resisting a police officer to as much as $1,000 [since rescinded] seems unlikely to deter rabble-rousers. Closing the parks at night for seven hours, instead of five, may do little more than disrupt the routines of city residents.

The clashes between police and protesters in 1968 still echo, despite the successful, if emotionless, staging of the Democratic convention 28 years later. Mr. Emanuel’s proposals seem driven more by a fear of reliving those bad memories than a sense that we have learned to tolerate raucous expressions of political views.

There seem to be two issues at stake. The first is obvious, deterring rabble-rousers, so let’s table it for a moment. The second is more interesting: the government’s desire to prevent disruption versus the right to free assembly. There’s obviously a gradient, from allowing all but mob violence to stifling all public assembly.

The city has long maintained the right to control the terms of public assembly, which is why I’m not convinced that the new ordinance is “draconian.” (It’s certainly not draconian compared to Boston’s idiotic response to the 2004 DNC.) What it does do is push the line towards control and away from free assembly, in sometimes absurdly tiny ways, like closing the parks two extra hours. Which is something people should be concerned about, but it’s worth putting in context. As David Heinzmann ably explains:

The administration’s actions are in part a response to the March 2011 ruling by Judge Richard Posner of the 7th U.S. Circuit Court of Appeals, who rejected the city’s attempt to dismiss two civil lawsuits alleging police violated the rights of hundreds of protesters.

Posner said the city’s puzzling permit rules and poor decision-making by police led to mass confusion during the demonstration on March 20, 2003, with police informally deciding to let the march take over Lake Shore Drive with no firm understanding of where it would end.

In other words, the city’s had permit requirements on the books. What ticked Posner off—and he did sound ticked off—was the city’s incompetence in enforcing the permit requirements:

The underlying problem is the basic idiocy of a permit system that does not allow a permit for a march to be granted if the date of the march can’t be fixed in advance, but does allow the police to waive the permit requirement just by not prohibiting the demonstration…. The defendants’ lawyer at oral argument was unable to come up with a reason for such a rule. As a result not of the rule itself but of the failure to plug the hole in it, the police did not know what the route of the march would be and, reacting ad hoc and perhaps in some panic, resorted to mass arrests without justification.

Posner goes as far as to say the police could have prevented protesters from entering Michigan Avenue, but the only legal way of doing so was to clearly communicate it to the march:

That didn’t mean the police had to let them enter Michigan Avenue. They had adequate reasons not to let them do so, and could in the circumstances-a large protest march that was getting out of hand-order them to return to the place where the demonstration had begun, and by a route prescribed by the police, or to disperse, but in any event not try to reach Michigan Avenue by any route. But before the police could start arresting peaceable demonstrators for defying their orders they had to communicate the orders to the demonstrators.

[snip]

No precedent should be necessary, moreover, to establish that the Fourth Amendment does not permit the police to say to a person go ahead and march and then, five minutes later, having revoked the permission for the march without notice to anyone, arrest the person for having marched without police permission. This would be “an indefensible sort of entrapment by the State-convicting a citizen for exercising a privilege which the State had clearly told him was available to him.”

This gets to the heart of the problem, the balance between public safety/lack of nuisances and the right to spontaneous assembly, but it’s one that seems to stump even Posner:

All the culpable conduct took place when the plaintiffs were present on Chicago Avenue, reasonably believing that they had permission to be there. The decision to waive the permit requirement did not subject the City to liability-if anything, it shielded the City from liability for curtailing freedom of speech and assembly.

Nothing in either the First Amendment or local law would have forbidden the Chicago police to require of the organizers, as a condition of waiving the permit requirement in order to allow a demonstration on a date as yet uncertain, a clear idea of the intended march route, to hold them to it, and to prepare in advance reasonable measures for preventing the demonstration from spilling over the boundaries of the authorized march.

This paradox is summed up by Heinzmann: “The city’s practice of giving police leeway to accommodate spur-of-the-moment demonstrations without defining a route opened the door to confusion and potential chaos.” The ideal that emerges from Posner’s opinion is a spur-of-the-moment demonstration with a “clear idea of the intended march route.” Note the wiggle word idea. Not a “clear march route,” but an idea of one. What does that mean? Beats me.

In fairness to Posner, it’s a difficult balance: reconciling the importance of spontaneous political demonstration with the precedent that governments can regulate political demonstration by permit. He’s clear on this:

A city couldn’t without violating freedom of speech and assembly flatly ban groups of people from spontaneously gathering on sidewalks or in public parks in response to a dramatic news event. But it can require a permit for a planned event on public property, especially a large-scale demonstration or march, provided it does not use the requirement to stifle demonstrations by imposing unreasonable conditions, such as having to apply for a permit 45 days in advance….

[snip]

A group that had wanted to hold a rally to protest the U.S. invasion of Iraq and had applied for a permit from the City of Gary on the first day of the war would have found that the [invasion] had ended before the demonstration was authorized. The City does have an unwritten policy of waiving the permit requirement for a ‘spontaneous’ demonstration, but only if the demonstration is ‘not planned.’ The scope of the dispensation is thus opaque. Courts more skeptical than ours about the validity of advance-notice requirements point out that requiring even a short period of advance notice prevents spontaneous demonstrations.”

Anyone who’s ever tried to plan a sponaneous dinner among friends will appreciate the difficulties of planned sponteneity. Now try applying that to a march of tens of thousands of people.

It wasn’t always this complicated. In his opinion, Posner cites a fascinating 2009 UCLA Law Review paper by Tabatha Abu El-Haj, “The Neglected Right of Assembly” (PDF), about the history of political demonstration in America and the late-19th/early-20th century shift from near-total freedom of assembly to regulated assembly. El-Haj cites the 1899 Illinois intermediate appellate court case Trotter v. City of Chicago to show the general attitude towards demonstrations at the time from the legal system:

Processions and parades through the streets are not nuisances, and have never been so considered. True, a procession may become disorderly or riotous, and degenerate into a mob, or a parade may be so conducted . . . as to invite a breach of the peace, or to render itself a nuisance, but this would be under exceptional circumstances, and the individuals so disporting themselves would be subject to punishment, and are thus under the restraint of law.

Under a popular government like ours, the law allows great latitude to public demonstrations, whether religious, political or social, and it is against the genius of our institutions to resort to repressive measures which have a tendency to encroach on the fundamental rights of individuals or of the general public.

El-Haj summarizes the view of the courts towards the first regulations of public assembly:

These decisions show that late nineteenth-century courts generally balked when faced with the kinds of ordinances that we take for granted as constitutional exercises of the police power. Their skepticism was driven, in part, by the recognition that these ordinances broke from American political and regulatory traditions that comported with their understanding of the right of assembly. The risks of disorder and of interfering with the rights of passersby were not considered sufficiently serious to justify the ordinances. These courts were not without a notion of time, place, and manner regulation. In passing, two of them explicitly entertained the idea that some kind of time, place, and manner regulation of street processions might be necessary and constitutionally permissible. What they adamantly did not believe was that the ordinances they were reviewing—which required advance permission across the board—fit that bill.

She attributes the turn towards regulation to a series of opinions in Massachusetts courts, culminating in a surprisingly restrictive opinion by Oliver Wendell Holmes:

For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary rights interfere, the Legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes.

For El-Haj, this opinon was “anomalous” and unrepresentative of American history to that point, and it has been “severely undermined by subsequent Supreme Court decisions.” But not, in her opinion, undermined enough enough (emphasis mine):

We have been left with a mere reference to traditions of American street politics and little knowledge of the original understanding of the right of assembly. The founding generation’s conception of the right as an important and robust political tool has been forgotten, whereas the anomalous view of the Massachusetts Supreme Judicial Court continues to influence contemporary understanding.

[snip]

Thus, we should be extremely wary of complacence in the face of government regulation of public assemblies. In fact, there is good reason to think that current regulatory choices are undermining the meaningfulness of public assemblies for participants as well as their effectiveness as a mechanism to influence and check government. Since the former harm is likely to be the less appreciated, it is worthy of particular comment.

Her conclusion is compelling: freedom of expression and the right of assembly have been wrongly conflated. El-Haj wants to actually separate the two in order to protect the latter as a separate right in and of itself, because of their unique qualities—individual rights versus collective action.

It’s a fascinating conclusion to me because of its implications. In the age of the Internet and social media, we have a near-infinite number of venues for free speech. Reasonable people can disagree on whether we live in a good legal climate for freedom of speech, but the sheer number of places in which to speak guarantee a wide de facto berth. El-Haj doesn’t give a broader historical argument for the reasons free assembly was more tightly regulated, relying mostly on the persistence of Holmes’s opinion to explain it. And it well may have sprung forth fully formed from the brain of Justice Holmes. But as to what followed, I can’t help but think the rise of mass media has something to do with it: the amplification of speech putting freedom of speech first and foremost, allowing freedom of assembly to be neglected.

But El-Haj presents us with a challenge: that physical assembly is fundamentally different from freedom of speech, and has distinct societal benefits which require distinct protections. It’s particularly resonant amidst (admittedly age-old) complaints that society is growing ever atomized with wave after wave of new media. It’s an argument that privileges space as much as speech as its own medium.

 

Photograph: Anthony S Jennings (CC by 2.0)

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