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Monday, January 23, 2017

Peaceably to assemble

A question asked out of genuine curiosity and with no intent to disparage: How is it that more than 3 million people in multiple cities, including 1/2-million in D.C. and 1/4-million in NYC, marched without incident, without conflicts or confrontations with police, and without arrests? Meanwhile, so many other protest/march/rally/gathering everywhere for the past several years--all involving far fewer people--has seemed to devolve into violence, property destruction, and multiple arrests.

Without more, it seems too simplistic to say "these were peaceful, whereas those others were violent and met with appropriate force." There is a chicken-and-egg problem: Has conflict resulted from those protesters being angry, violent, and destructive and police responding with appropriate force and authority to lawlessness? Or have protesters become angry when met with massive resistance by police in riot gear limiting where in the public spaces they are allowed to move, trying to move them off the streets or pen them off into far-off "protest zones." Have other protests descended into lawlessless when police declared otherwise-peaceful gatherings unlawful assemblies to be broken up with force and detention? Not to excuse violence or say that no arrests have been warranted; only to say the spark of conflict is not clear. The consent decrees with Ferguson and Baltimore, with specific provisions requiring cities and policies departments to reassess how they respond to public protests, suggests a recognition that departments have not responded well.

So why was Saturday different, both in the sunny protesters and in the mild, cooperative police response? Was it that the world was watching? Was it that the terms of the gatherings had been negotiated in detail in advance and adhered to (which Tim Zick would argue is good for keeping the peace, but not what public expression should require)? Was it that the crowd was predominantly women, who are less likely to become violent or confrontational with police? Were police more restrained because the protesters were women? Was it that the crowd seemed largely (just based on photographs and TV coverage) white, which created a less heightened atmosphere among police? Was it some combination of all of these?

Finally, regardless of why Saturday was so peaceful, will cities learn anything from it? Will it demonstrate that public speech is possible, consistent with other municipal activity, and need not be restrained or pushed into confined areas or met with massive force? Will it demonstrates that public speech should be welcomed?

Posted by Howard Wasserman on January 23, 2017 at 09:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink


I think one factor is that the subject of the protest on 1/21 was NOT protesting perceived unequal/unjust police actions.

It is a lot easier for the police and the authorities to play a more objective peacekeeper role when they are the not target. It is substantially harder to maintain that objectivity when you become, at least in part, the receiving end of the emotional energy driving a protest.

Posted by: Andrew Balthazor | Jan 29, 2017 4:03:04 AM

Looks like an interesting book.

Obviously I can't comment on it immediately, but off the cuff I would say that "non-violent resistance" can means something quite different from "totally peaceful march that followed all the permit conditions".

When was the last non-trivial general strike in the United States?

Posted by: brad | Jan 24, 2017 2:28:13 PM

@brad - I'm not sure that your premise is correct re violence; these researchers found that nonviolent resistance is more effective than violent resistance: http://www.ericachenoweth.com/research/wcrw/

Posted by: gdanning | Jan 24, 2017 12:45:34 PM

(Tongue firmly planted in cheek) Amen, Shawn Boyne! Tell me that the Ferguson protests wouldn't have gone quite differently if the protesters had all been wearing pink knit "pussy" hats...

Posted by: Anon | Jan 24, 2017 11:17:50 AM

Perhaps there were only a limited number of folks interested in creating mayhem, who either released their energy on Inauguration Day and felt satisfied or who were arrested?

Posted by: Matthew Bruckner | Jan 24, 2017 8:42:10 AM

I was in D.C. ON the bus ride from Indianapolis to D.C., we were briefed/encouraged to follow the directions of the organizers. When we arrived at DC, we were greeted by police officers and organizers who directed us to the metro. I was a bit surprised to hear police officers greet us with the refrain "welcome to DC." We had the same experience with the metro officers on the DC mass transit system. Remarkably, I never was close enough to the sound system to even hear the speakers. The closest thing I witnessed to a confrontation was that several women tried to talk to a group of men completely dressed in black with their faces covered. I was told that that was the same group that had instigated some of the violent activities on the previous day.

The closest I came to members of law enforcement who were a bit on edge (for good reason) was right outside the White House. Even then, when groups of women started talking with members of the secret service, the officers seemed to be struggling to stop themselves from laughing at some of the questions that the women were asking in good spirits.

I have participated in quite a few protests. This felt more like a celebration. Some of the speakers may have sounded angry, but the majority of the crowd was not acting in an angry manner. We were happy to be together and to see that we were not alone Maybe it was the pink hats.

There were areas where traffic was stopped and couldn't move forward because the "march" had gone off course. The police tried to get the traffic moving rather unsuccessfully, but there was no effort made to arrest anyone.

Posted by: Shawn Boyne | Jan 23, 2017 6:08:56 PM

The anarchists who blazed a path of destruction on 1/20 were there with malice aforethought. They came equipped to break stuff and so forth. From what I can tell, the police tried to quell them without simply wading in a breaking heads. Get in front of them; block their advance; bring up the rear and start arresting.

Note also that the DC Police just settled a case from 2000 where they penned up a bunch of protestors, demanded that they disperse (which they could not do) and then arrested them. It appears that the DC Police have modified their practices in light of that settlement.

It is entirely plausible that the crowds being mostly white and women played a role.

Posted by: Michael | Jan 23, 2017 3:18:20 PM

PaulB: My "world view" is actually more nuanced. In fact, I listed the non-violent nature of most of the protesters as a factor. Of course, in any mass rally, disruptive protesters with non-peaceful agendas may be present. That said, it is my view that militarized policing, and the militarization of place, is incompatible with First Amendment rights and creates more problems than it resolves. I think that has been the conclusion of officials in cities like Seattle and Los Angeles (among others), when they have engaged in meaningful post-protest evaluations.

Posted by: Tim Zick | Jan 23, 2017 2:57:39 PM

I think there are various strategies that advances a peaceful protest, including being somewhat flexible about enforcing certain regulations in the field.

Per one comment, surely there were some miscreants on 1/20 & at some point, it's the motivation of those who do that that matters but a mass rally like 1/21 could bring forth some too. What stopped them? The planning required for Saturday's protest includes some chance of the police getting a sense of things, but separate lawbreakers can still use the moment if they wish to do so.

As to the value of the march, "the emotional needs of participants" is a major value in itself. I think such a major protest RIGHT AFTER the inauguration (including the separate numbers involved in DC) sends something of a useful message. Of course, as I noted in a past comment, it alone only helps so much. Long term is the rub there.

Posted by: Joe | Jan 23, 2017 12:12:05 PM

An interesting question is whether completely peaceful marches and harmony with the police is a positive from the point of view of whatever underlying cause the marchers are marching for. If we around the globe and over the course of last hundred or so years the people power movements that have actually resulted in real change have almost all had either violence, the implicit threat of violence, or at least widespread obstruction. This in turn has often lead to overreaction by the police, the creation of martyrs, and ultimately stronger support for the underlying movement.

Personally, I don't think I want a successful people power movement, at least not yet. But I'm skeptical that an anodyne march, even a large one, accomplishes anything other than satisfying the emotional needs of participants.

Posted by: brad | Jan 23, 2017 11:58:17 AM

Howard and Tim, you both seem to think that violence and vandalism is the result of restrictive police procedures at protests rather than conscious decisions by those attending to engage in unlawful activity. How does that world view explain the violence that occurred on January 20 as opposed to the complete lack of same at the much larger rally on January 21? Do you really think the DC police got much smarter in 24 hours?

Posted by: PaulB | Jan 23, 2017 11:48:05 AM

I meant to say immigration protests in the *mid-2000s.*

Posted by: Tim Zick | Jan 23, 2017 11:23:33 AM

Great question. I think the explanation lies in some combination of the factors Howard points to in the post. I think some jurisdictions have a wealth of experience with mass protests, and that they may have (finally) internalized certain norms regarding non-violent policing and management. D.C. is of course one of those places, and other large cities have a wealth of experience. Of course, that doesn't explain events in smaller cities and towns. I think there is something to the visibility of the protests, although in a number of instances, including at national political conventions, an engaged public did not prevent restrictive policies and forms of aggressive policing. I'm inclined to think the generally non-violent nature of the protesters had something to do with the official response to them - although, again, this does not always guarantee the absence of militarized policing.

I do think there is something to Jennifer's observation - when protesters appear en masse, sometimes organically and other times in response to a public call, not even advanced planning can keep protesters in pens, zones, or otherwise restrict their movements and other activities. Police in those instances may have to pull back and forego enforcement of permit requirements. I'm thinking, in particular, of what happened during some of the mass protests in the mid-1990s concerning immigration reform.

I'm not sure we can or should read the weekend's events as generally heralding a new era of protest policing. The absence of any one factor could have resulted in a different protest environment. A number of jurisdictions are now considering restrictive laws relating to assembly and public protest. I think we can anticipate at least a partial "law and order" backlash to the BLM movement.

Posted by: Tim Zick | Jan 23, 2017 11:18:31 AM

Even though the terms were negotiated, I don't think they were adhered to. I was signed up to be a marshal in Denver, and my instructions were to keep the marchers on the sidewalk, making sure they didn't block traffic. That went out the window very quickly.

That of course just sharpens your question.

Posted by: Jennifer Hendricks | Jan 23, 2017 10:45:15 AM

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