Professor Tabatha Abu El-Haj has been identifying the dangers inherent in the persistent neglect of the right to assemble for more than a decade. Her scholarship on this underappreciated facet of the First Amendment has proven increasingly relevant given the actions taken by law enforcement organizations in response to the recent wave of protests throughout the U.S., including the now infamous dispersal of peaceful protesters at Lafayette Square. In recent weeks, Slate, The Atlantic, the American Constitution Society (ACS), and the legal studies blog Balkinization have featured Abu El-Haj as she parses out why there is so much ambiguity about what the right of peaceable assembly protects and identifies what can be done in response.
Today, the greatest threat to the right to assemble is uncertainty about how disruptive protests can be before they exceed First Amendment protections, according to Abu El-Haj. Specifically, the question has become: do assemblies that engage in unlawful acts lose constitutional protection or is this loss only applicable to those who engage in violence? If the latter, how much violence must occur in a protest before it exceeds the First Amendment protections?
The scope of the right to assemble wasn’t always so poorly defined. Taking a long view of the history shows that until the late 1800s, the right to assemble was understood to have a broad scope, as Abu El-Haj shows in her 2009 article, “The Neglected Right of Assembly.”
“If we go back historically to what was the outer bounds of First Amendment protections before we had ‘time, place, and manner’ regulations, the answer was that an unlawful assembly, as they understood it at the time, was basically a collective and concerted decision to engage in imminent violence to persons and property,” said Abu El-Haj during a panel discussion hosted by the ACS on July 31.
Contrary to this historical understanding, the right to assemble has, in recent years, been seen as a mere “subset of the right of individuals to speak,” Abu El-Haj told Garrett Epps in an interview for his article in The Atlantic, “The Whole Concept of ‘Unlawful Assembly’ Is a Mess.” A symptom of this inferior treatment is seen in the permit requirements that have been established by local and state authorities to restrict protests to certain times and places. This, in turn, raises questions about whether merely violating terms of the permits (unlawful acts) render protests outside the First Amendment’s protection.
Unfortunately, as Abu El-Haj remarked during the ACS panel , there is essentially no state law precedent answering these important questions about the scope of the First Amendment’s protection for disruptive protesters. While police often charge unlawful assembly and riot at the time of a protest, generally “none of those charges stick,” leaving a gap in precedent.
Without precedent, ambiguity on the scope of the right to assemble has reached new levels as reflected in the Fifth Circuit Court’s recent decision in McKesson v. Doe, which held that Black Lives Matter protest organizer DeRay McKesson was civilly liable under tort law for violence committed by an unknown protest participant—violence which he neither participated in nor incited. This decision, if upheld, could significantly chill grassroots protests.
An even higher level of ambiguity was reached in recent weeks, when U.S. Attorney General Bill Barr and others sought to justify the actions taken to break up protests, according to the July 29 Slate article by Dahlia Lithwick, which cites Abu El-Haj’s scholarship.
Fortunately, the Supreme Court of the United States (SCOTUS) has an opportunity to step in. While SCOTUS has yet to respond to the pending certiorari petition in McKesson, Abu El-Haj suggested in a recent Balkinization blog post that the case “provides the Court an opportunity to reverse course and clarify both the importance and scope of the right to assemble.” Specifically, SCOTUS could use the case to offer a “a new affirmation that you can’t lose your First Amendment rights because you’re in the vicinity of people who are acting outside the bounds of the First Amendment,” said Abu El-Haj during the ACS panel.
Although Professor Abu El-Haj has co-authored an amicus brief urging SCOTUS to take the case, in a second Balkinization blog post she argues that if SCOTUS does not grant cert, state legislatures could clarify the ambiguities that threaten the right to assemble. Specifically, she calls for state legislatures to take such actions as amending “statutory definitions for crimes of riot and unlawful assembly.” Most ambitiously, Abu El-Haj suggests that legislatures can create laws that disallow “time, place, manner” constraints as “grounds for dispersal or declaring an assembly unlawful.”
Regardless of which courts or legislatures take up the issue, as protests become an increasingly vital method of expression in this unprecedented moment of change and unrest, it’s certain that the nation will have to confront the ambiguity and constraints placed on the right to assemble and decide how the right should function in the future. As Abu El-Haj wrote in her second Balkinization blog post: “Even in the high digital age, outdoor crowds play a huge, and increasing, role in American politics.”
Abu El-Haj, Tabatha. “McKesson v. Doe—Searching for Clarity on Protesters’ Rights.” Balkinization. August 10, 2020. https://balkin.blogspot.com/2020/08/McKesson-v-doesearching-for-clarity-on.html.
---. “Our Best Bet—Legislating a Robust Right to Peaceably Assemble.” Balkinization. August 11, 2020. https://balkin.blogspot.com/2020/08/our-best-betlegislating-robust-right-to.html.
Epps, Garrett. “The Whole Concept of ‘Unlawful Assembly’ is a Mess.” The Atlantic. August 9, 2020. https://www.theatlantic.com/ideas/archive/2020/08/the-whole-concept-of-unlawful-assembly-is-a-mess/615079/.
Litchwick, Dahlia. “We’ve Neglected the Freedom of Assembly for Years Before Portland.” Slate. July 29, 2020. https://slate.com/news-and-politics/2020/07/freedom-of-assembly-neglected-before-portland.html.