Protester Rights

To sin by silence when they should protest makes cowards of men. – Abraham Lincoln

The rights of peaceful protesters in Ferguson were violated because of the actions of others who chose to take advantage of the situation. The five second rule which required the protesters to keep moving and not stand in one spot was a constitutional violation.

Officials often interfere free speech or infringe on the rights of protesters to peacefully assemble, The ACLU publication, “Know Your Rights: Demonstrations and Protests” provides an overview of your rights.

The First Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition. It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government.

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 Fourteenth Amendment to the United States Constitution makes this prohibition applicable to state governments, see Hague v. C.I.O., 307 U.S. 496, 512 (1939).

The right to assemble is not, however, absolute.  Government officials cannot simply prohibit a public assembly in their own discretion, Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969), but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met, Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984).

Freedom of speech has limits. Speech that involves incitement, false statements of fact, obscenity, child pornography, threats, and speech owned by others are all completely exempt from First Amendment protections. Commercial advertising receives diminished, but not eliminated, protection.

Clarence Branderburg, a Ku Klux Klan leader, made reference to the possibility of "revengeance" against "niggers", "Jews", and those who supported them during a filmed televised speech. In Brandenburg v. Ohio, 395 US 444 (1969), The Supreme Court held that government cannot punish inflammatory speech  unless that speech is directed to inciting, and is likely to incite, imminent lawless action.

In Chaplinsky v. New Hampshire, 315 US 568 (1942), the Supreme Court held that speech is unprotected if it constitutes "fighting words". Fighting words, as defined by the Court, is speech that "tend[s] to incite an immediate breach of the peace” by provoking a fight, so long as it is a “personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction". Additionally, such speech must be "directed to the person of the hearer" and is "thus likely to be seen as a 'direct personal insult'".

In Near v. Minnesota, 283 US 697 (1931), the Supreme ruled that prior restraint on publications is a violation of free speech and free press. A prior restraint is government action that prohibits speech or other expression before it can take place.

Missouri Revised Statutes Chapter 574  (Offenses Against Public Order) are often used to justify violating protest rights. Click the links to read the complete statute.

Peace disturbance 574.010. 1. A person commits the crime of peace disturbance if:

(1) He unreasonably and knowingly disturbs or alarms another person or persons by: (a) Loud noise; or (b) Offensive language addressed in a face-to-face manner to a specific individual and uttered under circumstances which are likely to produce an immediate violent response from a reasonable recipient; or (c) Threatening to commit a felonious act against any person under circumstances which are likely to cause a reasonable person to fear that such threat may be carried out; or (d) Fighting; or (e) Creating a noxious and offensive odor; (2) He is in a public place or on private property of another without consent and purposely causes inconvenience to another person or persons by unreasonably and physically obstructing: (a) Vehicular or pedestrian traffic; or (b) The free ingress or egress to or from a public or private place.

Unlawful assembly 574.040. 1. A person commits the crime of unlawful assembly if he knowingly assembles with six or more other persons and agrees with such persons to violate any of the criminal laws of this state or of the United States with force or violence.

Rioting 574.050. 1. A person commits the crime of rioting if he knowingly assembles with six or more other persons and agrees with such persons to violate any of the criminal laws of this state or of the United States with force or violence, and thereafter, while still so assembled, does violate any of said laws with force or violence.

Refusal to disperse 574.060. 1. A person commits the crime of refusal to disperse if, being present at the scene of an unlawful assembly, or at the scene of a riot, he knowingly fails or refuses to obey the lawful command of a law enforcement officer to depart from the scene of such unlawful assembly or riot.

Unlawful Assembly as Social Control – Washington University in Saint Louis – School of Law

How to Use Jail/Court Solidarity

Jail/court solidarity is a combination of non-cooperation techniques and collective bargaining that groups of activists can use to take care of each other in the legal system. Jail/court solidarity has been used in the civil rights, peace, environmental, anti-globalization, and other movements.

The leverage for solidarity arises because jails and courts, in order to run smoothly, rely on people to be passive and obedient. Jails expect prisoners to get in line and march where they’re told. Courts expect defendants to sit quietly and give up their right to trial. Neither of these systems is set up to deal with large, organized groups of people who simply say, “No, I won’t.” So when people non-cooperate and negotiate as a group, the authorities may be forced to agree to their demands. Of course, the demands have to be ones that the jail authorities or the prosecutor are capable of meeting. Jail/court solidarity will not bring about an end to nuclear weapons or corporate globalization.

Typical Demands

  • All the people arrested for the same type of incident must receive the same charges and sentence, instead of some (such as leaders or Arab-Americans) being singled out for harsher treatment.
  • A person in custody who’s sick or hurt must be given immediate medical treatment.
  • Someone who’s been locked up separately must be returned to where the rest of the group is being held.

The demand must be clearly explained to the authorities, and then backed up by non-cooperation tactics, which can be physical or procedural.

Physical Non-Cooperation Techniques

  • refusing to stop chanting, singing or dancing
  • refusing to follow orders (if they say stand, then sit; if they say line up, then mill about)
  • refusing to move at all
  • refusing to wear clothes
  • refusing to eat (but not refusing to drink)

In choosing non-cooperation tactics, it’s important to leave room for escalation if demands are not met. Refusing to eat (fasting) is normally the last tactic people use. It’s one of the most difficult, but also one of the most powerful forms of non-cooperation. Because it’s harder for everyone to communicate and make decisions well when they stop eating, at least one person in each group should refrain from fasting and act as caretaker for those who do fast. The “designated eaters” assist in facilitating meetings and in communicating with supporters, lawyers, media and the authorities. (Of course, it's silly to "dry fast," because negotiations often take longer than one can stay alive without drinking.)

Procedural Non-Cooperation Techniques

  • not bringing ID and refusing to gives name or answer other questions (so the authorities have to keep people locked up)
  • refusing to promise to appear in court (again so the authorities have to keep people locked up)
  • demanding to have the court appoint a free attorney to represent every low-income defendant¹
  • refusing to plead guilty (so the authorities have to hold trials)
  • refusing to give up the right to a speedy trial (also known as refusing to “waive time”)
  • having the lawyers submit lots of motions (written legal arguments, to which the prosecutor must respond) and requiring lots of hearings in court

Using Jail/Court Solidarity

Groups should consider in advance which solidarity demands and non-cooperation tactics they might use at various stages of the action, in jail and in court. Activists who employ jail/court solidarity tactics need to leave plenty of room for those who don’t wish to join them. Not everyone can stay in jail or prepare for trial. But then, not everyone has to participate in order for solidarity tactics to work—it only requires enough people to leverage the negotiation. The strength of solidarity comes from the voluntary agreement of everyone who takes part in it, and from the support given to those who cannot take part.

Solidarity is particularly important when working in coalition, because it helps protect members who are likely to be treated worse than others, such as:

  • non-U.S. citizens and recent citizens, especially those from Arab or Muslim countries
  • people of color, LGBT people, and people with disabilities
  • people who are seen as leaders
  • people who go limp, who lock down, etc.
  • people who dress punk or who wear all black
  • people on probation or parole
  • people with prior arrests or convictions

Jail/court solidarity requires that people have good meetings and take the time to listen to each other. Never, ever let the police, jail authorities, or lawyers push the group into a rushed decision. Activists can nearly always bargain for more time. After all, it's simpler for the authorities to give the group another fifteen minutes to come to consensus, than for them to carry large numbers of people who’ve all gone limp.

1. People are only entitled to court-appointed lawyers if they're facing jail time. If a person’s charged with an infraction, a crime for which the penalties don’t include jail (for example, certain traffic violations), the judge will not appoint a free lawyer.

Solidarity topic © 2004 Katya Komisaruk.


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