This article originally apeared in Censorship News Issue 126
It was the “winter of our discontent,” to judge by the number and intensity of protests around the country. Most of these protests, like the Women’s March and the March for Life, displayed the strengths of our constitutional system. But not all. Some protesters and public officials apparently don’t know or don’t care about what the Constitution actually says about the right to protest.
The First Amendment explicitly protects “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” While protesters can say almost anything – they can even advocate violence as long as they don’t incite it – they may not engage in or threaten actual violence. The crucial distinction is between speech and conduct. The First Amendment protects only the former.
Some protestors ignore this critical distinction. Violence erupted on Inauguration Day in Washington, D.C. and elsewhere. Violence also disrupted a planned appearance by former Breitbart editor Milo Yiannopoulos at the University of California at Berkeley and other campuses. At Middlebury College in Vermont, protests against an appearance by Charles Murray, author of a controversial 1994 book on race and intelligence, erupted in violence in which a professor was injured. (Several students commented that they wanted to hear the talk and were prepared to ask Murray questions, but felt pressured into participating in the demonstration, showing that groupthink can be as dangerous to freedom of thought and speech as outright repression.)
At the same time, some officials wrongly cite the behavior of a few to suppress speech by law-abiding protesters. Law enforcement officials swept up non-violent protesters, journalists, and legal observers in Washington on Inauguration Day. (A similar over- reaction resulting in the unlawful arrests of thousands of protesters at the Republican National Convention in 2004 cost New York City $18 million.) In at least 19 states, some legislators want to suppress peaceful dissent through intimidation. Some proposals would impose serious penalties on peaceful protesters for minor infractions of traffic laws, others would insulate drivers from liability for hitting protesters, or would authorize the seizure of assets from the organizers of a protest that turns violent, even if they did not engage in or incite violence.
Both sides misapprehend some of the fundamentals about the right to protest and the role it plays in our constitutional system. Violent protesters ignore the fact that their own right to free speech depends on tolerance for ideas they revile. Protesters who successfully shut down someone else’s speech set a precedent for others to silence them. It’s a zero-sum game. The right to free speech exists for all, or for none; it rests on the premise that worthy ideas will gain acceptance and flawed ideas will be rejected. History supports this notion. Not so long ago, advocates for racial equality were subject to intimidation and even imprisonment for engaging in peaceful protests. Yet, thanks to the strength of their arguments and the protections offered by the First Amendment, the civil rights movement succeeded.
For public officials, the stakes are different, but equally compelling. The right to protest is critical to democracy and to the rule of law. The First Amendment protects speech, assembly, and petition precisely so that social change can occur as a result of persuasion, and without resort to “riot or revolution.” The alternative can be seen in places where speech is repressed and violent resistance is perceived as the only avenue to express opposition or remedy injustice.
They ignore that lesson at their peril, and ours.