Defining Nonviolence as a Matter of Law and Politics

Abstract

Recent years have witnessed the reinvigoration of disruptive political protest — from the Occupy Movement, to Black Lives Matter, to the Women’s Marches. These sorts of disruptive outdoor assemblies, including many of their tactics, have been central to American politics since the Founding, and have long been protected by the First Amendment. Nevertheless, legislatures around the country have been introducing and passing bills that render a wide swath of protest tactics unlawful precisely because they have been effective in drawing attention to claims and issues that typically fall off the legislative radar. More important, these legislative efforts are part of a broader erosion of fundamental democratic norms — from partisan redistricting to rewriting legislative procedures and attacking the free press and the independence of the judiciary. Now more than ever, therefore, whatever our personal normative views of either the tactics of contemporary protesters or the parameters of current constitutional doctrine, it is our duty as a scholarly community to reaffirm that recent acts of protest and dissent operate well within the bounds of our American tradition of outdoor assembly and its constitutional protections.

Keywords: First Amendment, Right of Peaceably Assembly, Protest, Dissent, Nonviolence, Disorder, Occupy, Black Lives Matter, Anti-Trump Resistance, Legislative Efforts Regulating Assembly

JEL Classification: K00, K1, K10