The recent murder of George Floyd has ignited the growing anger the black community has felt towards the increasing militarized police force. The Black Lives Matter Movement gained a lot of news coverage early on with the looting of a Minneapolis Target. From that instant many large news companies labelled the movement as largely consisting of rioters and looters; people with the intent to start mayhem. With the protesting continuing daily following the initial protests, the President has encouraged governors and local government to return to law and order. This current event has led to increasing debate of what rights are protected under the First Amendment of the U.S. Constitution.
The text of the First Amendment states: 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. For the purposes of this analysis, the most important Supreme Court cases involving freedom of speech and the right to peaceably assembly will be discussed.
Freedom of Speech
It appears as though historically the right to free speech is much less protected than the average citizen may think they are protected. In the case of Chaplinsky v. New Hampshire (1942), Chaplinsky was arrested on the basis of offensive, derisive, or annoying speech as defined by the State of New Hampshire. Specifically, in a disagreement Chaplinsky called a police officer a “God-damned racketeer” and “a damned Fascist”. When brought on appeal to the Supreme Court, a unanimous decision agreed with the arrest Chaplinsky and furthermore this set a precedent of “fighting words” being enough to qualify for arrest.
However, a different outcome is seen in the case of Terminiello v. City of Chicago (1949). In this situation, Terminiello was speaking to a gathering of people and in his speech he criticized many different political and racial groups. The group which he was speaking to became “angry and turbulent” as described by the police. The cause for arrest of Terminiello was labelled under “breach of the peace” which he challenged in an appeal to the Supreme as a violation of his first amendment rights. The Supreme Court decided in a 5-4 ruling that arrests on “breach of the peace” directly infringed upon the freedom of speech clause. The difference between this case and Chaplinsky v. New Hampshire is the designated of some words being classified as “fighting words”.
In another case, not long after Terminiello v. City of Chicago (1949) was decided, Feiner v. New York (1951) seems to create a completely opposing narrative on the decision of arrests regarding breech of peace. In this decision, Feiner was arrested by Syracuse police after his speech regarding racial justice caused the officers to be concerned over whether violence would erupt. In a 6-3 decision, the Supreme Court upheld Feiner’s arrest claiming that it did not violate his first amendment rights and the arrest was fulfilling a valid interest of maintaining peace and order. In a strong dissenting opinion, Justice Hugo Black argued that the arrest was unconstitutional as there was no evidence of an imminent riot. Clearly, in the discussion of free speech in conjunction with the possibility of a riot, the Supreme Court has displayed varying messages.
Freedom to Peaceably Assemble
While living through historical events, it is sometimes difficult to see the events as clear in the moment compared to a clear historical recount of the event. In the cases brought the Supreme Court regarding possible infringements on the right to peaceably assemble, the situations appear much clearer than they may have in the moment. The first case of importance is Edwards v. South Carolina (1963) which is fairly straight to the point. The South Carolina State Government arrested 187 black students on the grounds of breach of peace when they peaceably assembled to protest their grievances with the state. The Supreme Court overturned this decision in an 8-1 rulings that the arrests had been in violation of their first amendment rights.
Most cases regarding peaceably assemble are straightforward such as the one above; if the assembly consists of peaceful protesters then in most cases there is not a constitutionally protected reason to disperse the crowd. An interesting case that utilized the peaceable assembly clause was PruneYard Shopping Center v. Robins (1980). In this case, a group of high schoolers peacefully assembled at a local mall to protest and distribute pamphlets opposing a United Nations Resolution. A mall security guard asked them to leave because they claimed it was against the policies of the mall. However, when the Supreme Court reviewed the case, a unanimous decision ruled that the high schoolers had the right peaceably assemble and solicit their materials as their first amendment rights did not intrude on the rights of private property owners. This is an interesting case because it sets the precedent of private property, that the public has access to, being protected areas for peaceable assemblies.
Through the analysis of leading cases that have asked the Supreme Court to review both freedom of speech and freedom to peaceably assemble can shed light on the current constitutionality of the history we are living through. It is clear that freedom of speech has less protections and more loopholes to qualify for arrest. However, the peaceably assemble cases do not stray in reaffirming the right of the American people to peaceably assemble.