Policing, Protesting, and the Insignificance of Hostile Audiences
Rachel A. Harmon, Policing, Protesting, and the Insignificance of Hostile Audiences, Knight First Amend. Inst. (Nov 2, 2017)
12 Pages Posted: 7 Aug 2018
Date Written: August 7, 2018
Cities like Charlottesville struggle to balance free speech and public safety when demonstrators and counter-demonstrators come to town. This brief essay argues that the First Amendment “hostile audience” cases that largely regulate municipal responses to political speech fail to address the challenges posed by contemporary protests. First Amendment case law imagines identifiable speakers articulating unpopular messages who need protection from censorship by city officials and persecution by crowds. Today, however, police departments face competing, loosely-organized, and heterogenous groups, organized quickly by social media. Many seek to bring about social change by disruption as well as by speech, and they are often unwilling to negotiate with police, creating a predicament for communities that prize both free speech and public order. In addressing this predicament, police forces can easily suppress speech within the boundaries of First Amendment law. As a result, doctrine will often be less important than political will and participant preferences in determining what our system of free expression looks like on the streets. Since the complexity of contemporary protest goes far beyond the hostile audience doctrine’s images of unpopular speakers and disorderly listeners, the First Amendment is only a starting point for understanding the values at stake and the legal tools and constraints applicable to efforts to maintain order.
Keywords: Charlottesville, First Amendment, hostile audiences, policing, protest, free speech, negotiated management, strategic incapacitation, escalated force
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