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Protesting and the First Amendment

Posted on June 05 2020

Protesting and the First Amendment


On May 25, George Floyd died while in police custody in Minneapolis, Minnesota.

George Floyd was shopping at a grocery store. When Floyd handed a 20-dollar bill to the clerk to pay for his purchase, the clerk became suspicious that the money was counterfeit. The new clerk contacted the police. According to the transcript of the call, the clerk said that he had asked Floyd to return his purchase, but "he [Floyd] doesn't want to do that.” The clerk also said that Floyd seemed “drunk” and “not in control of himself.”

The police soon arrived. Two officers found George Floyd sitting in a car across the street from the store with two other passengers. Officer Thomas Lane pulled out his gun. He ordered Floyd to show his hands. According to an official statement, Officer Lane "put his hands on Mr. Floyd, and pulled him out of the car.” As he was being handcuffed, Floyd "actively resisted.”

After he was handcuffed, Floyd no longer resisted. Officer Lane explained that he was being arrested for "passing counterfeit currency.” However, when officers tried to place Floyd in their squad car, a struggle followed. Soon, according to an official report, Floyd "stiffened up, fell to the ground, and told the officers he was claustrophobic.”

Other officers were called to the scene. Among them was Officer Derek Chauvin. Officers had attempted to get Floyd into the police car. Instead, Officer Chauvin pulled him from the car, causing Floyd to fall to the ground. While officers restrained Floyd, Officer Chauvin, who is white, placed his left knee between Floyd’s head and neck and kept it there for 8 minutes and 46 seconds. During this time, Floyd, who is African American, began pleading with the officers, repeatedly saying, "I can't breathe."

George Floyd soon became unresponsive. Bystanders asked the officers to check Floyd’s pulse. When Officer J. A. Kueng felt Floyd’s wrist for a pulse, he reported that he "couldn't find one.” An ambulance came to take Floyd to the hospital. He was pronounced dead an hour later.

The arrest did not go unnoticed. It was captured on video using a smartphone. Soon, people around the world were able to witness George Floyd’s last minutes of life. The four officers involved were fired. Derek Chauvin, the officer who kept his knee on Floyd’s body, was arrested and charged with third-degree murder and second-degree manslaughter. The other officers have not been charged.

In response to George Floyd’s arrest, thousands of people took to the streets in protest. The right to assemble is something that is acknowledged by the First Amendment of the U.S. Constitution. Adopted in 1791 as part of the Bill of Rights, the First Amendment states that people have the right “peaceably to assemble” as well as the right to “petition the government for a redress of grievances.”

Yet, in several protests around the country, it sometimes appears that this First Amendment right is not clearly upheld. U.S. cities, including Minneapolis, New York, Denver, Atlanta, and others, have issued curfews, making it illegal to assemble on city streets after a certain time each evening. In a post on the social media site Twitter, the Minneapolis Police Department said that “arrests are being made” in the cases of those who disobey the curfew. In cases such as these, the First Amendment has limits: Governments can restrict the rights of people to peacefully assemble within a certain timeframe.

In addition, an hour before the 11 p.m. curfew on Sunday, May 31, in Washington, D.C., police fired tear gas and stun grenades into a crowd. In this case, First Amendment rights might be met by government force. It can be unclear who is peaceably protesting and who is using the opportunity to loot or cause trouble. This also makes assembly murky.

In fact, sometimes peaceful bystanders can be subject to government force. On the morning of May 29, a team of CNN reporters was arrested while covering a protest in Minneapolis. It was “a clear violation of their First Amendment rights,” CNN posted on Twitter. “The authorities in Minnesota, including the Governor, must release the 3 CNN employees immediately.”

Throughout U.S. history, there have always been some restrictions on the First Amendment. For example, the government can restrict the time, place, or manner of speech used by protestors. Or the local government might limit the use of microphones and speakers in a neighborhood at night when people are sleeping. However, the use of restrictions also must be unrelated to the content of the speech—in other words, the purpose of restrictions is to be mindful of others, not censor. The government must then allow people enough alternatives for expressing their positions.

Similarly, a local government may place restrictions on protests that interrupt the flow of road traffic, as some protesters in Los Angeles did on May 27, when they blocked traffic on the 101 Freeway. According to the American Civil Liberties Union (ACLU) of Illinois, “Protesters do not have a First Amendment right to block pedestrian or vehicle traffic, or to prevent entry and exit from buildings. . . . [The] general public has a right to freedom of movement that police must protect. For example, to address widespread unlawful blockades of the entrances to reproductive healthcare facilities, Congress enacted the Freedom of Access to Clinic Entrances Act of 1994, which prohibits the use of force, threats, or obstructions to interfere with access to such facilities.”

Another type of speech that may be restricted by government is called incitement speech. For example, in the U.S. Supreme Court 1919 case Schenk v. the United States, Justice Oliver Wendell Holmes wrote, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In his argument, Justice Holmes used a now well-known example about falsely shouting the word “fire” in a crowded theater. If someone were to yell “fire” in a crowded place, he or she would likely incite, or cause, the audience to panic. Similarly, governments may restrict speech that encourages people to break the law, damage private property, or injure others. This position is sometimes used by governments to disrupt protests.

The government may also restrict speech that is viewed as threatening. In the 2003 case Virginia v. Black,the U.S. Supreme Court upheld a state of Virginia statute that made it illegal to burn a cross in public with the intent to intimidate others. Cross burning, the court said, constitutes something it deemed a true threat.

In its ruling, the court wrote, “’True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” In such a case, it was not necessary for the speaker to actually intend to carry out the threat expressed. By prohibiting threatening language, the Court stated, the law protects “individuals from the fear of violence” and “from the disruption that fear engenders,” as well as “from the possibility that the threatened violence will occur.”

In some cases, the government may actually punish certain types of speech. Telling lies about a person’s character—called slander if these lies are spoken or libel if they are written—is rarely prosecuted, but nonetheless it is illegal in several U.S. states. In addition, lying under oath, a crime called perjury, is considered a serious offense. This crime is taken very seriously because the foundation of the U.S. legal system depends on judges and juries being able to trust the statements people make in a courtroom.

However, court rulings have generally considered people filming the police—as was the case with the George Floyd arrest—to be protected under First Amendment rights. In the case of Glik v. Cunniffe, Simon Glik was arrested after he tried to record police officers’ interaction with an African American man in Boston. When the charges were dismissed, Glik sued, saying that his First Amendment Rights had been violated.

In this case, the 1st U.S. Circuit Court of Appeals sided with Glik, explaining, “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.” In short, the court said that the First Amendment implies that people have the right to receive information and ideas. Filming the police meets that criterion.

Whether the actions of protestors and police in the wake of George Floyd’s death are considered within the bounds of the First Amendment will likely be decided in some courtroom in the future. However, it seems like some of the people closest to Floyd are hoping that protestors do not try to solve their grievances with violence.

"If I'm not over here wildin' out, if I'm not over here blowing up stuff, if I'm not over here messing up my community, then what are y'all doing? What are y'all doing?" asked Terrence Floyd, George Floyd’s brother, at a memorial site set up for his sibling. "Y'all doing nothing. Because that's not going to bring my brother back at all."

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