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Monday, November 17, 2014

Inevitable conflict and the state of the First Amendment

This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.

But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.

The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.

Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.

Posted by Howard Wasserman on November 17, 2014 at 08:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink



I think Howard is suggesting that the type of precautions are important. As any crim law person knows, how the police respond to situations impacts the danger of those situations. And the early days of Ferguson show that an elevated police presence produces a more dangerous situation. Policing, in short, isn't a zero sum game.


I was thinking along similar lines. More specifically, at what point is pre-emptive deployment of troops a prior restraint? When they prohibit speech and assembly, sure, but what if their mere presence results in people refraining from protesting? Chilled speech as prior restraint?

Posted by: Steven R. Morrison | Nov 18, 2014 4:26:26 PM

If I had a criminal client in St. Louis County, I'd want to know how I could go about getting all the evidence presented to the grand jury considering indictment including getting to present my own witnesses.

Did Wilson have to use a lot of airline miles to secure access to the first class justice system?

Posted by: brad | Nov 18, 2014 11:23:22 AM

Are you honestly suggesting that they shouldn't be taking precautions?

Posted by: jon | Nov 18, 2014 6:42:33 AM

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