Demonstrations
Demonstrations are mass gatherings typically held in public spaces to express political protest or advocate for social change. In the United States, these assemblies are protected under the First Amendment, provided they remain "peaceable." The types of demonstrations can vary widely and include marches, rallies, picketing, and sit-ins. While demonstrations are a vital form of political expression, they are subject to certain regulations regarding their timing, location, and manner, ensuring public order is maintained. Importantly, courts have reaffirmed the need for law enforcement to protect peaceful assemblies, even when the ideas expressed may be unpopular. The concept of "peaceable assembly" distinguishes demonstrations from other forms of public gathering, which may not receive the same level of constitutional protection. Globally, the right to peaceful protest is recognized as a fundamental human right, with various international agreements outlining the parameters for such assemblies. However, tensions can arise when public safety concerns lead to restrictions that some view as infringing upon free expression rights.
Demonstrations
- DEFINITION: Mass gatherings, usually in public places, for purposes of political protest
SIGNIFICANCE: A form of assembly, demonstrations are given qualified protection from censorship by the First Amendment, as long as they are peaceable
Demonstrations are a form of assembly, given protection from control or censorship by the U.S. Constitution so long as they are “peaceable.” Many forms of demonstrations exist—marches, rallies, picketing, sit-ins, and more. Demonstrations are always assumed to be forms of political protest; thus, a rock concert, for example, would not necessarily be well protected. “Peaceably” is the key word in the First Amendment’s command that “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble.” The First Amendment divides the free expression of ideas into three categories: speech, press, and peaceable assembly. The Congress (and since the 1930s, state and local governments) may not exercise a prior restraint over either speech or press. The presence of the word “peaceably” in connection means assemblies can be, and routinely are, subject to censorship or prior restraint.
Forms of Free Expression Distinguished
Speech and press differ from assembly in that they are assumed to have a more passive character, allowing the government to grant them greater protection. While it is possible to imagine someone making a speech before an assembly that would incite a riot, it is difficult to imagine a crowd silently reading a book, reaching a dramatic line at the same moment, and then rioting. Initially, none of the First Amendment applied to the states before the passage of the Fourteenth Amendment. Section one of that amendment requires that no state deny any person the "right to life, liberty, or property without due process of law." This language has been held to incorporate the most important rights in the Bill of Rights and apply them to the states. This has been done on a case-by-case basis. Assembly was incorporated and applied to the states at least partially in the case of DeJonge v. Oregon (1937). However, this was more clearly stated in Hague v. Congress of Industrial Organizations (1939). Hague is the basis for the essential rule that assemblies may be restrained in time, place, and manner. Permits may be required for those who wish to use public parks and streets for assemblies. The permits may not be denied in a discriminatory manner and must be open to all who wish to use them on an equal and evenhanded basis. There must be no censorship of the ideas that are involved. One must consider demonstrations as mixed speech and assembly controversies, as with street oratory cases, to understand how this works. Since there is no restraint for speech, but there can be prior restraint for assembly, one must find a balance between two rights.
Conflict with Riot Laws
The U.S. Constitution’s framers never intended to prohibit censorship of assemblies or demonstrations. Many laws on all levels forbid or limit the size of assemblies, such as limits on the number of people who may occupy enclosed spaces, but this is not a free expression issue. Regulations may require advance permission or prohibit demonstrations during commuting hours to allow the free movement of traffic for people going to and from work. Neither kind of regulation has anything to do with the content of the ideas. If the police knew that a speaker planned to provoke a riot, such an assembly could also be restrained.
Difficulties arise when speakers address peaceful assemblies with no intention of starting riots, but express ideas so offensive to their audiences that some listeners seek to silence them with violence. When the U.S. Supreme Court first considered such a case in Feiner v. New York (1951), it decided that the police could arrest speakers, even though they had no intention of starting a riot, apparently putting the blame on the peaceable speaker instead of a violent audience. Eighteen years later, in Brandenburg v. Ohio (1969), the Court reversed itself by holding that the police should protect those who assemble peaceably, even if they express unpopular ideas, from members of the audience who might threaten them.
To see how far the Court has gone to protect those who express unpopular ideas, consider the famous case of the American Nazi Party members who planned a demonstration in Skokie, Illinois, a city with a large Jewish population. Using the swastika, flags, and paraphernalia of the German Nazi Party, these American Nazis espoused vicious anti-Semitic views. Skokie’s Jewish groups threatened violence if the Nazis were allowed to demonstrate, and the city government passed three separate ordinances to block the march, saying that the audience would not be peaceable, even if the Nazis were.
The American Civil Liberties Union (ACLU) joined in the suit on behalf of the Nazi Party, despite the ACLU’s opposition to Nazi ideals, because the ACLU thought it vital to protect free assembly. They prevailed when a federal district court struck down the Skokie ordinances; the U.S. Supreme Court upheld the lower courts in Collin v. Smith (1978) and National Socialist Party v. Village of Skokie (1977). Despite the lack of a Supreme Court opinion in the case, the Court’s decision strengthened freedom of assembly. Ironically, after the case was over, the Nazis did not actually march in Skokie, since they had already achieved their true goal of winning nationwide publicity.
Unlike assemblages of people who gather to watch nude dancers or attend concerts, demonstrations are usually regarded as a protected form of political expression, but their leaders must be peaceful. If so, the police are required to protect them from hostile onlookers. Since freedom of assembly is restricted to peaceable assembly, there are limits on demonstrations that do not exist for the press, although prohibitions against censorship apply. Free speech or First Amendment zones—areas designated for protesters and demonstrators—gained popularity in the early 2020s on college campuses and political events. First conceived in the 1980s, these areas were created to limit the potential of protests to become violent, but some argued that their use violated individuals' First Amendment rights.
The United Nations, the International Covenant on Civil and Political Rights, and other international conventions have established standards concerning the right to peaceful protest worldwide, primarily concerning human rights, unreasonable use of force, and the collection of personal information. Amnesty International's global campaign to protect the protest monitors individual’s right to peaceful protests.
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