Recent events throughout the country have inspired protests and resulted in discussions regarding the role of police, racial justice initiatives, and what to do about symbols of America’s past, such as monuments, and flags. Attorneys tasked with representing activists who take to the streets to protest may wonder how to balance freedom of speech and public safety. On June 24, the MSBA presented the Legal Summit Series Representing Political Protesters Under the First Amendment to examine such concerns. The presentation featured Mark Goldstone, Esq. of the Law Offices of Mark L. Goldstone, a leading authority on First Amendment Rights.
Mr. Gladstone began with an overview of events that occurred in 2020 and inspired protests across the United States, including COVID-19 lockdowns and the televised killing of George Floyd. He noted that the protests in response to the killing of George Floyd and other related protests were largely peaceful, but the administration portrayed them as violent and destructive and amped up the rhetoric and response. In contrast, conservative protestors were not characterized as violent, even though their actions eventually resulted in the storming of the Capitol on January 6, 2021.
Ultimately, protests on both sides have raised questions about freedom of speech and many states sought to institute stricter laws to punish protestors. Mr. Gladstone noted that many protests occur in Washington, D.C., and therefore many cases involving the protection of First Amendment rights are filed there. He noted that each location in D.C. has its own discrete case law, and cases dealing with one location, such as the United States Capitol, does not necessarily apply to others, like the White House. In other words, it is the location of a protest, not the form, that dictates how protestors can exercise their First Amendment rights.
The White House is an unusual forum for a protest in that it is both a private residence and the symbolic center of the Executive Branch. In contrast, the sidewalk in front of the White House is a public forum where free speech is generally allowed and government restrictions are more limited. Congress is considered the House of the People, where people are expected to observe, lobby, and participate in the democratic process. The hallways of the Capitol, however, have been deemed a non-public forum. The steps and plaza of the Supreme Court are non-public forums, and parties do not have a right to protest there.
Mr. Gladstone noted there are some common standards despite there being different statutes and rules for each location. Specifically, the “tourist standard,” which is commonly used as a barometer for when protesters may be crossing into illegal activity, assesses whether their actions are more disruptive than a group of tourists of comparable size. This may be moot now, as the targets of protest are largely unreachable behind barricades and fencing, but it aims to strike a balance between the right of protesters to express themselves under the First Amendment and the right of policymakers to carry out their duties without undue disruption.
Mr. Gladstone then touched on how these laws and standards may change after the chaotic events of 2020 and 2021. Currently, there are 4 miles worth of fencing surrounding public buildings in D.C. including the U.S. Capitol and Supreme Court, with calls to make some of it permanent, as well as fencing around the White House, which was erected in the wake of the George Floyd protests. Because of restricted access to public buildings, the tourist standard may have less relevance, as protests will be far away from their target audience. Authorities may create “free speech zones” far away from the policymakers and the media that the protesters are trying to communicate with. It is also anticipated that recent events will radically change available methods of nonviolent civil disobedience protest, such as sit-ins, orchestrated arrests, incommoding entrances and hallways, disorderly conduct, or interfering with Congress or the Supreme Court’s ability to conduct business as well. This may result in an elimination of the middle ground, forcing protestors to choose between peaceful but far-removed and ineffectual protest, and taking public buildings by storm, armed and dressed for combat.
You can view the program here.