In a Free Country, We Can Protest Conventions

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What gives you the right to protest the Republican and Democratic national conventions, and any other convention? The same First Amendment to the U.S. Constitution that gives the Occupy movement the right to protest, and others the right to protest the protesters.

This journalist wrote about demonstrators’ constitutional rights last year during the Occupy movement. What follows is from my November 2011 column “Huddled Masses Yearning to Breathe Free” published in Yahoo!’s Voices section–an overview of the evolution of these rights. It’s slightly edited.

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The First Amendment reads:

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The federal government’s archive website, The Charters of Freedom, notes that the Bill of Rights wasn’t simply an afterthought to the Constitution. Arguments ensued during the Constitution’s forming, questioning the amount of power the national government should garner. That led to the states demanding clear guarantees of individual rights. According to the archives’ site:

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Fresh in their minds was the memory of the British violation of civil rights before and during the Revolution. They demanded a “bill of rights” that would spell out the immunities of individual citizens. Several state conventions in their formal ratification of the Constitution asked for such amendments; others ratified the Constitution with the understanding that the amendments would be offered.

These rights have also been clarified by a history of court cases, including the U.S. Supreme Court’s assuring the right to peacefully assemble. According to the Illinois First Amendment Center–created to educate the public to the amendment’s rights and responsibilities–the first Supreme Court case addressing public assembly was United States v. Cruikshank (1876). The high court ruled that the “right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers and duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States.”

While the Cruikshank ruling applied specifically to the individual’s relationship with the federal government, by 1929 the Supreme Court had broadened the Bill of Rights and individual freedoms to also cover state and local governments. In Gitlow v. New York, the high court simply applied the Fourteenth Amendment’s “due process” clause to government at every level. That clause states, “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Applying that “due process” clause in Gitlow, the Supreme Court’s ruling stated that specifically the rights to freedom of speech and of the press were “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” In other words, the Fourteenth Amendment provides universal protection of individuals under the Constitution. Also, understanding that local governments receive their powers from the states, then freedom to peaceably assemble is included in those protections at every government level.

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In De Jonge v. Oregon, a 1937 case, the court stressed, “[P]eaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed.”

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The Supreme Court assured the public’s right to use streets and sidewalks as public forums in the 1939 case of Hague v. C.I.O. The justices concurred that authorities also could not prosecute peaceful demonstrators for “disorderly conduct.”

By 1963, during the anti-war, civil rights, and feminist movements, the high court ruled on public assembly in Edwards v. South Carolina. Police had arrested black marchers who did not disperse when ordered. The justices ruled that the marchers had assembled on public property, were peaceful, did not block traffic, and could not be guilty of breaching the peace. They had merely stood their ground, singing religious and patriotic songs, including “The Star Spangled Banner.” Justice Potter Stewart, writing for the majority, said the marchers had exercised their First Amendment rights “in their most pristine and classic form,” adding that a state cannot “make criminal the peaceful expression of unpopular views.”

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Numerous other cases since these also relate to the freedom of assembly. But here’s the basic idea: In the United States we have the legal right to peacefully gather in public, to protest, and to even protest the protesters. And we cannot legally be arrested, hit, or pepper-sprayed for doing so.