Saturday, September 17, 2016

Is there a constitutional right to protest?

The word does not exist in the Constitution, so it requires interpretation.

- From the ACLU of Oregon:

You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks. But in some cases the government can impose restrictions on this kind of activity by requiring permits. This is constitutional as long as the permit requirements are reasonable, and treat all groups the same no matter what the focus of the rally or protest.

The government cannot impose permit restrictions or deny a permit simply because it does not like the message of a certain speaker or group.

- More from the ACLU of Northern California.

How far doe this right extend? Did it apply to the Occupy Movement?

- Detail from ProPublica: Just How Much Can the State Restrict a Peaceful Protest?


The First Amendment is not absolute. Government can make reasonable stipulations about the time, place and manner a peaceable protest can take place, as long as those restrictions are applied in a content-neutral way.

But what constitutes a reasonable time, place and manner restriction? "It depends on the context and circumstances," said Geoffrey Stone, a professor specializing in constitutional law at the University of Chicago. "Things like noise, blockage of ordinary uses of the place, blockage of traffic and destruction of property allow the government to regulate speakers."

Stone gave a few examples of impeding ordinary usage: disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time.

Protests are fine, occupation is not.

- So says the Federalist Blog.


. . . the federal right to assemble was “to protect the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.” The Supreme Court case of United States v. Cruikshank observed the purpose of assembly was for petitioning government: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.”

In England, the right of assembly existed from early times and was strictly tied to the right of petitioning Parliament for political purposes, which the crown had always strongly contested. Different acts of the Tudors and Stuarts sought to limit and restrict assembly.

There is a big difference between gathering to draw public attention to some grievance or message through disruption of the public peace and peacefully gathering to address common public concerns and to circulate a petition for signature. The later requires no mob occupation or disruption of the peace or laws.

From a purely historical standpoint, “Occupy Wall Street” is nothing more than rebellion, and as such generally been dealt with by use of the militia to suppress.




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