Our First Amendment right has been systematically dismantled — just when we might need it most

by Aaron Gell
Oct. 27, 2020
reprinted from Gen/Medium

Lillian House, Eliza Lucero and Joel Northam

Nobody sets out to be a political prisoner. But as Lillian House sat in a 7-by-14-foot cell, listening to the faint hum of chanting supporters in the distance building to a roar as they approached the Denver County Jail to demand her immediate release, the 25-year-old Etsy seller realized maybe that’s what she’d become.

House, who is white, stands six feet tall and has green eyes and straight brown hair. Though she’s most often seen in a red T-shirt promoting the Party for Socialism and Liberation (PSL), House has a keen eye for fashionable vintage wear from previous decades, and she’s made a living buying and selling old clothes since college. At the time of her arrest on September 17 — part of a coordinated sweep of local activists that involved an armada of squad cars, tactical teams, and an MRAP armored vehicle — she was on her way to a local estate sale to scope out the merchandise. “I thought I was going to have a great day,” she recalls.

House and five fellow defendants — Joel Northam, Whitney “Eliza” Lucero, Terrance Roberts, Trey Quinn, and John Ruch — had been active in a series of protests aimed at bringing attention to the police killing of Elijah McClain, a 23-year-old Black man who was approached by officers in Aurora, a Denver suburb, on August 24, 2019, after a tipster reported seeing someone who “looked sketchy.” Restrained with a chokehold and injected with ketamine, McClain, a massage therapist and self-taught violinist, died shortly thereafter from cardiac arrest. Although some officers were later fired after taking a mocking selfie at the site of McClain’s death, district attorney Dave Young, a Democrat, declined to bring charges for the incident itself.

McClain’s death drew little attention until the PSL, for which House acts as an organizer, and other protesters took up the cause beginning in June. “The police and DA thought they were going to get away with zero consequences,” House told me. “Then we had an incredible summer of demonstrations.” One protest, which featured a “violin vigil,” shut down Interstate 225 in both directions. During a subsequent rally, an estimated 600 demonstrators surrounded the police precinct in Aurora. As the protest stretched toward midnight, the interim chief of police reached out to House, who put the call on speaker and held her phone in front of a mic for everyone to hear. They had no intention of storming the precinct, House reassured the chief, but nobody would enter or leave until the officers were fired. Despite that vow, the crowd dispersed peacefully at 4:30 a.m. after police showed up in riot gear. “We’re not there because we want people to get injured,” House says. “We know police have the monopoly on violence, and when they showed up intending to disperse us violently, we went home. It’s a long struggle.”

When police apprehended her months later, House figured she’d be held for a few hours and released. After all, she’d only helped organize a protest — a much-revered American tradition going back to the pre-Revolutionary period. Then she learned the charges against her: multiple felonies, including inciting a riot, attempting to influence a public official, and, remarkably, attempted kidnapping (due to protesters blocking the doors to the precinct). If convicted, House could spend some 48 years behind bars. The charges are “breathtaking,” says Mara Verheyden-Hilliard, co-founder of the Partnership for Civil Justice Fund and a veteran civil rights attorney. “And it’s the same DAs who have refused to charge the police who killed Elijah McClain, which is what the protests are about.”

Before House could even begin to fight the allegations or even post bond, she’d have to be arraigned before a judge, and her captors appeared to be in no hurry. Jailhouse conditions are harsh under normal circumstances, but the Covid-19 pandemic made things considerably worse. House was placed on lockdown for more than 23 hours a day, often without access to reading material or any other media. Jailers disregarded her medically restricted diet, she says, so she subsisted mostly on white bread. Her unit mixed inmates who’d been exposed to the coronavirus with those who hadn’t. And perhaps worst of all, she had no idea how long she’d be held. While a conviction on all of the charges appeared unlikely, House’s punishment, it seemed, had already begun. “They are seeing this movement that is really challenging them, and they’re looking to take out the leadership and send a wave of fear through the rest of the people,” she said of the local law enforcement hierarchy. “That’s not going to happen.”

This decade has witnessed a wave of mass protests — including the Occupy movement, Standing Rock, the Women’s March, Climate March, March for Our Lives, and most prominently, demonstrations against police brutality and racism — with few parallels in American history. It’s also seen a fierce backlash by government authorities aimed at aggressively managing dissent and, in some cases, quashing it outright in ways that appear to violate some of the most sacredly held rights afforded by the Constitution.

You don’t hear that much about it, but open a copy of the nation’s founding document, and it’s hard to miss. It’s there in the First Amendment, right alongside the better-known freedoms of religion, speech, and the press: the right of the people “peaceably to assemble, and to petition the government for a redress of grievances.”

But at one of the more troubled moments in our history — a fraught juncture in which the potential of a contested election looms over a nation already struggling with a deadly virus, an economic collapse, and an emergent far right that’s inclined toward political violence — our right to assembly appears to be under a sustained assault just when we need it the most. The shocking June 1 attack on peaceful protesters in front of the White House and the subsequent deployment of federal paramilitary troops to U.S. cities are only some of the most visible attempts to “dominate the battlespace,” as defense secretary Mark Esper put it. “There’s really this no-holds-barred approach to suppressing dissent,” Verheyden-Hilliard says. “In other circumstances where we’ve seen a crackdown on movements, it’s often much more veiled. But in this instance, it’s overt, it’s vicious, it’s brutal.”

And it’s hitting protest movements from all sides and at all levels of government. State legislatures are passing bills dramatically increasing penalties for what were once routine acts of civil disobedience. Police armed with military-grade weaponry are subjecting demonstrators to chemical agents, brutal beatings, rubber-tipped ammunition, and even sound cannons for participating in precisely the sort of activity the framers of the Constitution sought to protect. Municipal governments are placing onerous “time, place, and manner” restrictions on demonstrations, limiting the ability of protests to gain attention and generate public debate. Political leaders who hesitate to crack down aggressively, typically because they still value the First Amendment, are being threatened with funding cuts to their cities by the Justice Department to force compliance. Some protesters have even been charged with terrorism, including a pair of Oklahoma teenagerswhose alleged crime was breaking the windows of a bail bond shop. Attorney General Bill Barr recently urged local prosecutors to consider bringing federal sedition charges — a rarely used law — against protesters, and Trump mused about invoking the Insurrection Act to allow the military to be deployed in U.S. cities. Then there was the town in North Carolina, seeking to protect a Civil War monument, that tried to ban protests altogether.

Demonstrators are increasingly forced to contend with threats to their physical safety, and not only from the police. Many have found themselves confronted by armed vigilantes inflamed by false social media posts, posses of Proud Boys firing frozen paintballs and spraying bear mace, or wannabe cops like teen gunman Kyle Rittenhouse and members of various right-wing paramilitary groups, who often seem to be operating as de facto deputies of law enforcement. Meanwhile, demonstrators have to consider the risk of a car attack. Though James Fields is serving life in prison in the murder of Heather Heyer, more than 100 incidents of cars hitting protesters have been reported, including by New York and Detroit police officers, and many of those assaults have gone unpunished. (Several years back, bills were introduced in six states aimed at shielding drivers from criminal and civil liability for inadvertently hitting protesters; they all failed, due in part to the outcry over Heyer’s murder.)

For many civil rights attorneys, the multiple violations of the First Amendment could hardly be starker. “It’s incredibly concerning,” says Elly Page, a legal adviser for the International Center for Not-for-Profit Law. “This is a fundamental constitutional right. It’s embedded in American history, our right to protest.” Indeed, it’s impossible to imagine any of the nation’s mass social movements — on behalf of abolition, organized labor, women’s rights, civil rights, gay rights, and so many others — without it, to say nothing of the American Revolution itself.

There have, of course, been waves of repression throughout the nation’s history, from the brutal response to the labor movement of the 1930s and the anti-Communist hysteria of the 1950s through Nixon-era attempts to suppress the civil rights and antiwar movements. The latest wave began with Occupy Wall Street and accelerated several years later during the extraordinary yearlong campaign against the Dakota Access Pipeline. In response, panicked oil and gas companies pushed states to adopt harsh new rules against protesting near “critical infrastructure.” In all, a dozen state legislatures did so, generally using cut-and-paste model legislation drafted by the corporate interest group ALEC, the American Legislative Exchange Council.

Subsequent protest movements, including Black Lives Matter, have prompted additional countermeasures on the state level. There are stiff new penalties against impeding highway traffic, camping on state property, and even wearing a face covering (a statute that has come to seem especially severe during the pandemic). Protesters who violate the law in Tennessee, which currently has some of the harshest anti-protest statutes on the books, stand to lose their voting rights. And a bill passed in West Virginia following the successful 2018 teachers’ strike there protects law enforcement officers from liability for death or injury to protesters in the course of dispersing “riots” or “unlawful assemblies.”

“When there are episodes of social movements — and we’re in the midst of a quite dramatic and impressive social movement — you can always expect a backlash,” notes Timothy Zick, the John Marshall Professor at William and Mary Law School and author of The First Amendment in the Trump Era. “And the larger the movement, often the larger the backlash. So today, from local law enforcement all the way up to the commander in chief, you have a ramping up of both the rhetoric and the tools used against protesters.”

A few years ago, the flurry of proposed legislation grew so overwhelming that Page and her colleagues launched a public database to keep track of it all. Fortunately, she says, many of the most egregious proposals were defeated or never actually brought to a vote. “There are a lot of bills proposed that seem to be kind of symbolic,” she says, “where lawmakers are trying to position themselves politically by saying, ‘Oh, we’re going to crack down on XYZ type of protest’ through bills that are either plainly unconstitutional or too extreme to fly.”

A recent set of proposals by Florida Gov. Ron DeSantis may fit into that category. Among other things, DeSantis has advocated making it a felony to block a roadway or participate in a protest at which property damage takes place. Anyone convicted of striking a police officer with a projectile (including a water bottle) would earn a mandatory minimum of six months in prison. And a conviction for participating in a “violent or disorderly assembly” would automatically render the defendant ineligible for state benefits or government employment — a rule that could theoretically be applied to elected officials. (That seems far-fetched until you consider the felony charges brought by the Portsmouth, Virginia, police department against a state senator, local civil rights leaders, and public defenders for daring to attend a protest that, hours after they’d left, resulted in the destruction of several monuments to the Confederacy.)

But DeSantis doesn’t stop there. Under his proposal, someone who dares to organize a protest or donate money to support demonstrators could run afoul of the same racketeering statutes typically applied to drug cartels, bringing a prison sentence of up to 30 years. And a driver who plows into a crowd of protesters could escape punishment “if fleeing for safety from a mob.” Meanwhile, the proposal prohibits state grants to any municipality that shifts funding away from law enforcement, precisely the goal of many Black Lives Matter protests. DeSantis has yet to release the text of a bill, but actual legislation may well be beside the point.

Such laws “would probably be held unconstitutional if challenged,” notes Tabatha Abu El-Haj, a professor at Drexel University’s Kline School of Law and a noted expert on the right to assembly. The real goal, she believes, is to further “a discursive strategy to delegitimize disruptive crowds and to criminalize them and suggest they’re somehow antithetical to democracy.”

Since much of this legislation violates the First Amendment, it’s natural to assume the courts will eventually step in. But when it comes to the right of assembly, that’s hardly a foregone conclusion. As several legal scholars, most prominently Washington University’s John Inazu, have pointed out, the Supreme Court hasn’t invoked the assembly clause in a major decision in more than three decades. “Instead,” Inazu wrote last year, “protests and demonstrations are now governed by free-speech doctrine, which ignores the right of assembly and neglects the importance of collective expression.”

The Constitution’s framers well understood that the right to speak and the right to protest en masse were distinct liberties — equally critical for the health of democracy and worthy of protection — which is why they took pains to include both. Of course, they also took pains to limit First Amendment protections to assemblies that are “peaceable.” But the vast majority of protests clearly fall into this category. As for the relatively rare criminal acts against people or property, as Zick points out, “We have existing laws — arson laws and destruction of property laws and those sorts of things.” Such laws can and should be enforced narrowly, advocates say, while still protecting the right to assemble. But by habitually deciding cases involving assembly on free-speech grounds, the courts have opened the door to numerous restrictions in the name of public order — as police demonstrate every time they declare an “unlawful assembly” or charge a protester with “failure to disperse,” common strategies that might not pass judicial muster at all had the Supreme Court been more mindful of assembly.

But there are some important distinctions between speech and assembly, not least of which is that, as Page points out, “assembly takes its power from the fact that there are people coming together.” As a result, it tends to challenge authority in a way that speech rarely does. Moreover, as Nicholas S. Brod, now the assistant solicitor general for North Carolina, put it in a 2013 law review article, the right to assemble is “the one form of communication accessible to all, regardless of wealth: the use of our voices and our bodies to relay a message.”

Free speech, on the other hand, is a right that’s most effectively practiced by powerful individuals — and, of course, corporations — that can make use of the sort of enormous bullhorn that the working class or poor can scarcely hope to access. It may be reassuring to free speech advocates that the Supreme Court upheld the right of the nutjobs of the Westboro Baptist Church to demonstrate at a military funeral, for instance, but as a practical matter, their deranged howls were of no real consequence. On the other hand, Citizens United, arguably the most far-reaching free speech case of recent decades, wound up protecting the right of corporations to pour unlimited money into politics — largely to maintain the political status quo. Another momentous free speech case, Janus v. AFSCME, also helped consolidate corporate power by preventing labor unions from collecting dues from nonmembers.

“There’s a history of protecting speech where there’s very little cost,” Zick says. “There’s not a lot of tolerance in our jurisprudence for the truly disruptive. Reading case after case, you get the sense that, ‘Well, you can dissent, but we’re going to put layers of management on top of it to make sure you don’t inconvenience anybody or do it too loudly or stay in one place for too long.”

So while there are volumes of high court decisions guaranteeing us the right to shout about income equality until we’re hoarse, the freedom to spend the night with hundreds of other protesters in a local plaza or block traffic on a bridge to actually draw attention to the issue — two successful strategies employed by the Occupy movement — depend on a permissive reading of the assembly clause, and the Supreme Court has never supplied one.

“Judges and other elites are generally more willing to regulate assemblies than freedom of speech,” Abu El-Haj observes. “And that is somewhat about the power of assemblies. While most assemblies are peaceful, there is always an implicit threat of revolution or of violence that goes along with the presence of that many people on the street.”

Of course, cracking down on assemblies because they might become violent — as the Portland police department did one evening in mid-October, preemptively arresting demonstrators minutes after a protest began — is precisely the sort of state-based repression the assembly clause is designed to prevent.

Unfortunately, the courts might not be able to prevent such violations even if they wanted to due to the legal doctrine of qualified immunity, which shields police and other government officials from being held liable for their actions so long as they aren’t proven to have violated “clearly established” law. Shielded from meaningful consequences, authorities simply break the law. “Even after a court order, police officers and government officials disregard those legal norms,” points out Emerson Sykes, staff attorney with the ACLU Speech, Privacy, and Technology Project. “Whatever the courts may say, and they often agree with us, the people who are protesting are subject to judgment and discretion of law enforcement in the instant.”

Zick agrees. “The reality is, whether you have a right to protest and dissent in real-time depends on how police manage your protest.”

Inabout a week, Americans will elect the next president. Although some current polling indicates a decisive Biden win, many observers have predicted a contested election with heightened passions on both sides. Under those circumstances, the right to assembly will face one of its gravest tests.

“What are the streets gonna look like?” Zick wonders. “You want to make sure that people have the right to peacefully assemble and protest, but you obviously also have to account for violence, whether it comes from within a protest movement or outside of it. And I think it’s gonna be a huge challenge for law enforcement. So yeah, we live in a really scary time.”

“Both the proposed laws and the rhetoric around protesters that we’ve seen especially over the past few months tee up a really dangerous situation,” Page agrees. “Especially when there’s sort of tacit or explicit encouragement of militias or armed counterprotesters and an effort to delegitimize peaceful protesters by lumping them all together as criminals. Then again, if there’s a silver lining of widespread civil unrest, it’s that people are at least more engaged and more aware of their rights.” A recent Annenberg poll found that 34% of respondents knew the right of assembly was part of the First Amendment, up from 10% in 2017.

The question, of course, is whether the courts will choose to uphold those rights. “I don’t have any naive faith that the courts will save us,” Sykes says. “In many cases, these are legal issues but also political issues and power issues.” Even if Donald Trump is swept from office in a landslide and deigns to accept the results, his mark on the judiciary is secure. He’s installed nearly 200 federal judges, who will serve lifetime appointments (unless Congress institutes term limits, as some have proposed). With the confirmation of Amy Coney Barrett, Trump has hired a third of the Supreme Court. While conservative justices often favor strong First Amendment protections, the notion that courts stacked with originalist judges will suddenly restore the revolutionary promise of the right to assembly seems far-fetched.

In this, the ongoing case of Doe v. Mckesson is instructive. In that suit, a Baton Rouge police officer claimed he’d been hit with a rock thrown by an anonymous protester. He sued the Black Lives Matter movement and Deray Mckesson, the prominent activist who’d organized the demonstration, for damages. A federal district judge dismissed the suit, basing his decision on Supreme Court precedent establishing that protesters cannot be held accountable for consequences of their nonviolent activity. But in April 2019, a three-judge panel of the Fifth Circuit Court of Appeals, all Republicans, reversed the decision, ruling the case could proceed. Months later, one of those judges, a Trump appointee, suddenly changed his mind. The case is proceeding nonetheless and may be taken up by the Supreme Court next year. Given the makeup of the court, the outcome is anyone’s guess. According to Sykes, “The case has the potential to have an amazing chilling effect. If any organization can be held liable for actions of totally unconnected people, no one would organize a protest.”

And even if courts do eventually wind up protecting organizers from this kind of liability, the experts I spoke to all agreed, the spate of new legislative efforts coupled with a relentless drumbeat of anti-protester rhetoric is poised to further compound the chilling effect Sykes warns about.

“What the states are doing,” Verheyden-Hilliard says, “is signaling to people that they are risking life and limb if they join a peaceful protest, that they are risking decades in jail, that they’re risking bankrupting fines, just because they want to go out and, in common cause with other people, demonstrate or protest.”

“It’s already a sacrifice of time and resources to go out and engage in this kind of activity,” Zick points out. “And putting more obstacles in the way is going to make it less likely people will do it.”

Inall, Lillian House spent eight days behind bars awaiting her arraignment before a judge. She passed the entire time locked in her cell except for a brief period each day — 40 minutes or less — during which time she was allowed to shower, call her lawyer and family members, and visit with Eliza Lucero, 23, a fellow protester being held in a nearby cell. “We got so much comfort from being in there together,” House says. When it appeared that Lucero might be released, she instructed her legal counsel not to pay the bond; she wouldn’t leave House in there alone.

To House, the aggressive nature of the arrests and the inexplicable sentencing delays were designed to send a signal. “This was an opportunity for various police and sheriff’s deputies to take out their personal vendettas,” she says. “Honestly, it was terrifying to be so vulnerable under their custody, just realizing how powerless you are in that situation.”

There were times, she admits, when she wondered if it was worth it. “I had one of these moments when I looked at all of the charges in a list and counted up the sentences and saw I was facing 48 years,” she says. “That was staggering. But at the same time, you’re face to face with just how cruel and unacceptable this system is and what it’s doing to millions of people on a daily basis. What we’re seeing right now is that even the basic rights we have are absolutely critical to defend because they underpin the very right to advocate and struggle for a better future.”

Two days after their release, House and Lucero stood on a marble platform in front of the Colorado State Capitol building, addressing a crowd of supporters. Behind them stood an empty plinth, formerly the home of a statue of a Union soldier. (It was toppled by protesters in June due to an accompanying plaque’s reference to a massacre of Native Americans.)

“They targeted some of our leaders to scare us and to scare all of you,” she said, speaking into a microphone. “Every single thing about this was calculated and orchestrated to induce the maximum amount of fear.” It wouldn’t work, she promised. “They don’t know who we are!”

As she concluded her speech, House made an impassioned pitch for solidarity. They would all have “to fight for each other, no matter what the risks are, until every last one of us is free,” she told her comrades. “We know that the oppressor is strong. We know that the system is formidable. But we know that our determination is so much greater than our fear, and our solidarity is so much greater than their repression.”

Then she led the crowd in a familiar chant. “No justice,” they cried, “no peace!”