Protest, Policing and the Petition Clause

Abstract

This essay, a short book review of Ronald Krotoszynski Jr.'s book, Reclaiming the Petition Clause Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for Redress of Grievances, examines the variety of restrictions that actually affect protestors in the modern landscape. Professor Krotoszynski effectively argues that the Supreme Court's current use of content neutral time place and manner restrictions allows government officials to engage in surreptitious content censorship and also revives the defunct crime of seditious libel. His proposal to locate protestors' rights in the petition clause of the First Amendment is both historically grounded and attempts to avoid some of the pitfalls of current Supreme Court jurisprudence.

While laudable, Professor Krotoszynski's proposal, which relies on enhanced judicial review, is not adequate to solve the problems associated with restrictions on protestors in the contemporary landscape. Increasingly, police, rather than judges, are primarily responsible for decisions to quell peaceful protest and they do so with little in the way of legislative or regulatory provisions that are subject to challenge. This essay surveys some of the ways in which police have suppressed protests in the last several years without resorting to laws that are subject to First Amendment challenges and culminates with an example from the recent protests in Ferguson, Missouri, during which police were widely criticized for their tactics.

Keywords: Free Speech, Petition, First Amendment, Judicial Review, Protests, Ferguson, Michael Brown, Policing