Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly

Source: Tabatha Abu El-Haj, Drexel University Thomas R. Kline School of Law Research Paper No. 2015-A-03, July 30, 2015

From the abstract:
The Black Lives Matter movement provides a unique opportunity to revisit the First Amendment’s protection of a “right of the people to peaceably assemble.” Even more than the Occupy movement, the recent protests against the frequency with which unarmed African Americans die as a result of police officers’ actions illustrate the serious consequences that flow from the Supreme Court’s failure to appreciate that the First Amendment identifies a particular form of conduct – public assembly – for separate constitutional protection. The fact that the Black Lives Matter protests often bear little resemblance to our idealized conceptions of public discourse – as reasoned disquisitions on difficult choices of public policy – underscores why the Founders recognized the need for a separate clause to protect assembly and the process of redressing grievances. It thereby illustrates why the Supreme Court’s contemporary jurisprudence, which collapses the right of assembly into the freedom of speech, is thoroughly misguided – leaving protestors feeling that First Amendment protections are weak and lower courts confused about how to decide how much disruption officials constitutionally ought to be required to tolerate. In sum, this essay uses the recent protests as an opportunity to consider why outdoor assembly remains a valuable form of political participation, even in the digital age, and why it deserves more robust constitutional protections.