Freedman on Criminally Punishable Protest

Allison Freedman (University of New Mexico - School of Law) has posted Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest (Villanova Law Review, Vol. 68, Forthcoming) on SSRN. Here is the abstract:

 

In recent years, public protests have shed light on societal inequities that had previously gone unheard. Yet instead of responding to protestors’ concerns, many state legislators are attempting to silence disenfranchised groups by introducing hundreds of “anti-protest” bills. This is a recent phenomenon and one that seems to be accelerating—the largest wave of “anti-protest” bills have been introduced on the heels of the most robust protest movement in recent history, Black Lives Matter during the summer of 2020.

Although it is clear that legislators are attempting to tamp down public protest through restrictive legislation, it is less clear why state legislators have been emboldened to encroach on the assembly right in recent years. One answer may lie in the Supreme Court’s treatment of this fundamental right. Although the First Amendment articulates the “right of the people peaceably to assemble,” the Supreme Court has not decided a case explicitly on free assembly grounds in forty years. Instead, it has collapsed the right of assembly into the First Amendment’s other free expression guarantees. In doing so, it has relied on a relatively weak free speech standard—“time, place, and manner”—that provides minimal protection for public dissenters.

This Article looks at the practical effects of collapsing the free speech and assembly rights and advocates for a new standard that places the public gathering, its impact, and its context at the center of the inquiry. It also encourages a focus on the consequences of restrictive legislation rather than its mere intent. This framework will help safeguard the rights of disenfranchised groups while ensuring that truly violent conduct does not go unchecked.