Disruptive Protests Are Not a Constitutional Right


(SBA) - I remember the first time I saw leftist protesters snarling traffic. The cause of the moment was climate, I believe, and the bright-minded activists decided to protest the use of fossil fuels by causing tens of thousands of cars (and buses) to idle on the highway. Early Monday morning, organized squads of protesters deployed to shut down 15 intersections in D.C., snarling commuter traffic in all directions. Some activists chained themselves to a sailboat they hauled in to an intersection to hinder any removal effort.

That was in the heady, pre-COVID days of September 2019. Since the pandemic, such disruptive protest tactics have exploded exponentially. Today, they occur so frequently it’s hard to keep track of them all. In a single day last week, protesters shut down the Brooklyn Bridge, the Golden Gate Bridge, Philadelphia’s city center, and airport access roads in Chicago and Seattle. The rationale for the protests keeps changing — climate, abortion, identity politics, Palestine — but the tactics (and, I suspect, the activists too) are largely the same.

Disruptive Protests Harm Society
It should go without saying that such disruptive protests are unmitigated evils. They channel the activists’ displeasure with some public policy or state of affairs by inflicting unrelated harm on innocent passersby.

These and like minded protests explicitly aim to force their causes upon people in a totalizing fashion, such that ordinary Americans cannot travel to work, visit the pediatrician, enjoy a sporting event, or celebrate a religious holiday without caring about Gaza, or carbon emissions, or whatever is chic to rage about this week.

To the extent they succeed in totalizing their political issue, they degrade our civic life. But more often such intrusive protests only succeed in infuriating their victims; particularly with street blockades, most of the gridlocked drivers are too far away to even be aware that there is a protest.

Public sentiment against these radical protests is so intense that the libertarian-leaning Washington Examiner recently proposed making it a federal crime to block traffic.

Poor Police Responses Encourage Disruptive Protests
In the #ShutdownDC protest mentioned above, D.C. police initially scrambled to block off streets — from commuting drivers, not the protesters. City police and U.S. Capitol Police eventually arrested 32 protesters, but that was a fraction of the activists who broke the law that morning. This type of response from law enforcement has become routine at these protests.

I contend that this type of response has contributed to the rise in these types of protests. Not only does it make law enforcement agents complicit in abetting the protesters’ illegal, disruptive designs, but it also fails to hold the protesters accountable for their flagrant lawbreaking and the harm they cause to innocent victims. For these reasons, when law enforcement agencies respond to blockade protests in a tepid and unhurried manner, they incentivize more, similar misbehavior in the future.

City authorities would disagree with this characterization of their behavior. People have a constitutional right to protest, they would respond, and the government’s primary duty in such situations is to keep the protests from turning violent.

Before addressing the constitutional claim, consider a counter-example.

Florida Handled Protests Differently
In addition to street blockades in New York City, San Francisco, Philadelphia, Chicago, and Seattle, you probably haven’t heard that protesters also blockaded a street in Miami, Fla. You haven’t heard about it because it received virtually no media attention, and it received virtually no media attention because it did not result in an hour-long traffic jam.

The reason for this different outcome is the different reaction by law enforcement authorities, both Miami Police and Florida Highway Patrol. In preparation for expected disruptive activity, Florida law enforcement agencies had staged officers with riot gear on-hand. As long as the approximately 150 protesters demonstrated peacefully, the police did not molest them. But whenever the protesters attempted to block traffic, police on horseback and motorcycles quickly closed in and dispersed them. (Apparently this took place along eight-lane Biscayne Boulevard, the bayfront highway providing north-south access, near Miami Dade College, the Miami Heat Stadium, and Port Miami.)

Due to this proactive policing, only seven people managed to do something foolish enough to get arrested. Aided by someone in a pickup truck, these individuals suddenly took large PVC pipes and connected their arms together with them (to impede police efforts to break them up). They then lay down in a crosswalk at Biscayne and Northeast Third Street, blocking not the highway — there were too few of them — but the entrance to Bayside Marketplace, a shopping center connecting to a marina and park.

But the police were having none of it. After the demonstrators refused an order to depart from the crosswalk, the police took steps to remove them forcibly. With two or three officers to each demonstrator, the police picked them up in a unit — while their arms were still linked together with the PVC pipes — and deposited them on the sidewalk. Then the police could disengage them from one another and arrest them for impeding traffic, while also allowing traffic to carry on as before. Those seven individuals have been charged with second-degree misdemeanors, and in Florida prosecutors are likely to follow through on those charges.

Protesters Have No Constitutional Right to Block Traffic
But, what about the protesters’ constitutional right to demonstrate? This is what left-wing activists assert to justify their illegal demonstrations. Some local and state officials also appeal to this to plead that they are helpless in the face of illegal, disruptive protests.
This right relies upon the First Amendment’s protection for “the freedom of speech, or of the press; the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (modern protest activism rolls these distinct and separate activities into one) from congressional interference, and which courts have ruled also apply to states under the 14th Amendment.

However, like other First Amendment freedoms, the right to protest is not absolute. The freedom of the press does not provide absolute immunity from libel suits. The right to free speech is subject to content-neutral regulations on the time, place, or manner of the expression. Protests also may be limited by content-neutral regulations, such as that protesters must state their intentions and obtain a permit beforehand, must confine themselves to a certain location, and must disperse at a certain hour.

The propriety of neutral regulations is implied by the language of the First Amendment itself, when it recognizes the right of the people “peaceably” to assemble. At the very least, it requires that protests must not become violent and implies that they may not include otherwise unlawful activity.

Protests that aim to blockade streets violate laws against blocking streets — laws which are operational in nearly every jurisdiction. Such laws impose a commonsense “place” restriction on the protesters: you may not protest in the street because that is where cars travel, but you may protest next to the street on the sidewalk, which is designed for foot traffic.

Thus, activists have a right to assemble, to speak freely, and to petition the government for a redress of grievances. These rights combine to give them a right to stage a protest, but it does not give them the right to stage an unlawful one. In Florida, law enforcement officers did not abridge the constitutionally guaranteed rights of protesters, but they did prevent them from or arrest them for unlawful activity. This example proves that it is possible, with vigilant policing and quick responses to criminal activity, to permit protests without enabling activists to achieve their unlawful goal of blocking public roads.

Other states and cities should take note and take notes. Allowing protesters to snarl traffic and cripple other people’s activity is a conscious, policy choice, not a constitutional necessity.