Protecting Dissent: The Freedom of Peaceful Assembly, Civil Disobedience, and Partial First Amendment Protection

Abstract

Protesters in the United States frequently engage in peaceful unlawful conduct, or civil disobedience, such as blocking traffic or trespass. Often citing to the First Amendment, authorities will routinely decline to arrest or prosecute this nonviolent conduct or do so for lesser offenses than they could. This treatment though can vary considerably by location, issue, or the group demonstrating, with civil disobedience sometimes triggering an aggressive police and prosecutorial response. Further, those who engage in civil disobedience at protests face at least two emerging threats. First, some states have targeted protest movements, such as Black Lives Matter and anti-pipeline protests, by substantially increasing criminal penalties for peaceful unlawful conduct associated with these demonstrations. Second, organizers of demonstrations involving civil disobedience confront expansive new theories of civil liability under which they can be held liable when others engage in violence.

Courts have traditionally not provided civil disobedience First Amendment protection. While this stance has intuitive appeal from a rule of law perspective, it leaves demonstrators engaged in peaceful unlawful conduct, and organizers of such protests, excessively exposed—potentially facing substantial criminal and civil liability. This vulnerability can chill protected peaceful assembly and undercut socially beneficial forms of civil disobedience.

In response, this article proposes partial First Amendment protection for peaceful unlawful conduct at nonviolent demonstrations. Such protection would not decriminalize previously unlawful actions. It would though have at least two consequences. First, it would introduce penalty sensitivity analysis. For instance, peaceful protesters should generally not face felony charges for trespass connected with a nonviolent assembly. Second, it would limit civil liability for those who organize nonviolent assemblies that involve civil disobedience when others then commit violence.

While this approach marks a shift in First Amendment doctrine, it is not as striking as it may first appear. Supreme Court precedent already acknowledges a form of First Amendment penalty sensitivity and it has been keenly aware of the need to limit civil liability for organizers and others at protests. Meanwhile, the Constitution’s neglected freedom of assembly clause provides a natural constitutional vehicle for developing this protection more fully, while, at the same time, appropriately targeting its application. The article ends by considering and rejecting five potential counterarguments to this proposal, concluding that it provides the best avenue for protecting First Amendment values in hard cases involving civil disobedience at nonviolent protests.

Keywords: First Amendment, Freedom of Assembly, Civil Disobedience