Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly

27 Pages Posted: 1 Aug 2015 Last revised: 17 Jan 2016

See all articles by Tabatha Abu El-Haj

Tabatha Abu El-Haj

Drexel University Thomas R. Kline School of Law

Date Written: July 30, 2015

Abstract

The Black Lives Matter movement provides a unique opportunity to revisit the First Amendment's protection of a “right of the people to peaceably assemble.” Even more than the Occupy movement, the recent protests against the frequency with which unarmed African Americans die as a result of police officers’ actions illustrate the serious consequences that flow from the Supreme Court’s failure to appreciate that the First Amendment identifies a particular form of conduct – public assembly – for separate constitutional protection. The fact that the Black Lives Matter protests often bear little resemblance to our idealized conceptions of public discourse – as reasoned disquisitions on difficult choices of public policy – underscores why the Founders recognized the need for a separate clause to protect assembly and the process of redressing grievances. It thereby illustrates why the Supreme Court’s contemporary jurisprudence, which collapses the right of assembly into the freedom of speech, is thoroughly misguided – leaving protestors feeling that First Amendment protections are weak and lower courts confused about how to decide how much disruption officials constitutionally ought to be required to tolerate. In sum, this essay uses the recent protests as an opportunity to consider why outdoor assembly remains a valuable form of political participation, even in the digital age, and why it deserves more robust constitutional protections.

Keywords: First Amendment, Right to Assemble, Protest, Riot, Unlawful Assembly, Ferguson, Black Lives Matter, Protest, Peaceable Assembly

Suggested Citation

Abu El-Haj, Tabatha, Defining Peaceably: Policing the Line between Constitutionally Protected Protest and Unlawful Assembly (July 30, 2015). 80 MO. L. REV. 961 (2015); Drexel University Thomas R. Kline School of Law Research Paper No. 2015-A-03. Available at SSRN: https://ssrn.com/abstract=2638092

Tabatha Abu El-Haj (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

HOME PAGE: http://drexel.edu/law/faculty/fulltime_fac/Tabatha%20Abu%20El-Haj/

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