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A tumultuous year amid the COVID-19 pandemic and stark racial injustices such as the murder of George Floyd, exposed deep divisions in the country and drove countless Americans into the streets to protest. 

When law enforcement cracks down on violent interlopers, peaceful demonstrators can often be swept up in the process, and attorneys involved in those cases need to brush up on the First Amendment in order to zealously and effectively defend their clients.

That’s why MSBA hosted Mark Goldstone, a Rockville-based solo practitioner with 35 years of experience on the topic, in a recent Legal Summit Series: Representing Political Protesters Under the First Amendment to give members a primer on the up-to-date contours of protected speech.

Goldstone has represented protesters in movements including Fire Drill Fridays, which is Jane Fonda’s pro-climate group, Greenpeace, and Occupy DC.

Though he was the only panelist for the hour-long event, Goldstone proved he didn’t need any backup as he engagingly traced the last year of protests, and provided attendees with a refresher and an update on the First Amendment’s nuances.

“It was actually one of the most significant years in history for the First Amendment  and freedom of speech,” Goldstone said. 

Backlashes from pandemic-related lockdowns, mask mandates, and social and political upheaval gripped the national spotlight.

While most protests were overwhelmingly peaceful, there were some incidents of violence and looting. In response, many jurisdictions sought to pass laws that enhanced penalties for offenses such as property desecration or looting. 

Many legislatures did actually pass enhanced laws aimed at protesters, though neither Maryland nor the District of Columbia passed any changes. The Maryland legislature defeated two proposals, Goldstone noted. 

Other states weighed broad anti-picketing laws and some even proposed liability protections for drivers who run over protestors. 

Goldstone carefully outlined the latest in protest-related case law in the District of Columbia, which obviously sees more frequent protest activity being the seat of the federal government.

Attorneys have to be attuned to legal distinctions that can even depend on a client’s location within the District of Columbia at the time of arrest, he said.

The Capitol building has a unique status being thought of as “the people’s house,” while the White House and Supreme Court have different functions and security concerns, Goldstone said.

“Each one of those locations is covered by their own statutes, and they each have their own police forces,” he explained. “Because of this each location has its own discreet case law.”

Attorneys need to understand that case law pertaining to the Capitol Police, for example, doesn’t carry much weight when you are defending a White House protester, Goldstone explained. 

Goldstone touched on the First Amendment forum analysis, a complicated framework that governs the extent of free speech rights in particular locations. 

Attorneys were provided some factors to consider in evaluating when a conflict of interest prohibits joint representation of multiple clients arrested at the same protest.

The Legal Series Summit rounded up with a robust question-and-answer with the live, virtual attendees, during which Goldstone offered thoughts on defending clients whose messages or tactics aren’t as agreeable and how advocates can steer them away from unlawful methods. 

“My counsel is that the best path to achieve social change is through the non-violent, non-property-destructive path of my two heroes, Martin Luther King [Jr.] and Mahatma Gandhi.”

The video and materials are available online for MSBA members.