Assembly and Violence

by Michael Dorf

My latest Verdict column explores the policy and legal implications of the Dallas police force's use of a "bomb robot" to kill cop-killer Micah Johnson after negotiations for his surrender apparently broke down. I conclude that while some sorts of future bomb robots could raise difficult moral questions, the use of this one in this instance did not--at least qua bomb robot. In other words, if the police acted improperly in killing Johnson when they did, it was because they acted precipitously, not because they used a bomb robot.

In this post, I want to pivot from the end of the Dallas massacre to its beginning. In the wake of the Dallas murders, most leaders--including some not normally known for their restraint--made responsible statements condemning Johnson's actions, while recognizing both that police use of force against people of color remains a serious problem and that Black Lives Matter and other protesters do not bear responsibility for Johnson. Of course, there were the expected dissenters who accused not only peaceful protesters but even President Obama of having fanned the flames that ignited the likes of Johnson.

Without in any way agreeing with these accusations, I nonetheless want to suggest here that while peaceable assembly is a cherished constitutional right, it can also be a double-edged sword.

Let's begin with the virtues of public demonstrations and marches. In the age of social media and instantaneous communication, one might wonder why anyone needs to gather outdoors to express a political (or other) opinion.

Part of the answer is that Facebook likes and Twitter retweets are so easily and painlessly accomplished that they become virtually meaningless. This fact perhaps explains why so many people who are probably not assholes in real life act like complete assholes on social media, boldly expressing their outrage in ALL CAPS followed by multiple exclamation points!!!!  A simple like, share, or retweet can express a viewpoint, but it does not express the intensity of a viewpoint. Being an asshole about one's view is one way to express the intensity of one's view.

But suppose you don't want to be an asshole on social media, either because you think it's counterproductive or because you think that nobody should ever act like an asshole. An alternative means of expressing your view more intensely than a polite person expresses a view via social media is to gather out-of-doors with like-minded people for a rally and/or march. Taking the time and making the effort to do so communicates that you care much more intensely about the cause than does merely clicking on an image of an upturned thumb. Thus, ironically, the very ease of communication afforded by modern electronic tools makes those tools less effective than more traditional, and thus difficult, means of expressing a viewpoint.

Meanwhile, from a systemic perspective, peaceful protest has long served in part as what is sometimes called a "safety valve." People who are deprived of opportunities to make their voices heard peacefully may turn violent.  Concurring in Whitney v. California, Justice Brandeis both extolled the value of free speech (including freedom of assembly) as a vital part of self-governance and endorsed the safety-valve idea. He said that the founding generation
knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
This notion of peaceful protest as a safety valve is hardly outdated. A dramatic example is the calamity that is the ongoing Syrian civil war, which began in 2011 when Bashar al-Assad used force to suppress peaceful demonstrations demanding reforms. Deprived of opportunities to make their demands peacefully, some activists turned to force. That turn created opportunities for people who were never interested in seeking peaceful reform to hijack the opposition to Assad for their own nefarious purposes. The bloodbath that has engulfed Syria is partly the result. (It is also partly the result of the spread of the regional conflict between Sunni and Shia forces that was unleashed after the disastrous decision of the Bush administration to invade Iraq in 2002.)

The safety-valve function of peaceful rallies and marches is thus real, but so are two dangers. One is that, even when the government does not suppress peaceable assembly, agitators with their own agenda or hooligans with no agenda other than mayhem may mix among peaceful protesters. Micah Johnson is an extreme and atypical case, but the violent turn of recent protests in St. Paul and Baton Rouge--the respective sites of the recent police killings of Philando Castile and Alton Sterling--represents a known risk of protests intended to be peaceful. Organizers of a rally or march that includes more than a handful of protesters simply cannot control everyone who shows up. Worse, once violence erupts, even people who intended to protest peacefully can be swept up in the "mob mentality."

Nor is the ever-present risk of violence entirely an accidental and unwanted side effect of peaceful protest. To some extent it is baked in. Protest rallies and marches are not simply a means by which people express their views with greater intensity than a Facebook like, a blog post, or a pamphlet can convey. They also are an assertion of political power. As Larry Kramer explained in the opening pages of his 2005 book The People Themselves, "the people out of doors" are always just a step away from "mobbing."

To be clear, I am not advocating government suppression of peaceful marches and protests, nor am I suggesting that it is irresponsible for people with real grievances to organize such events, even knowing that despite their best efforts to maintain order, violence may erupt. I am simply observing that the risk is real.

It is a risk with which the founding generation was acutely familiar. Not only had they recently fought a revolution, but Congress debated what would become the First Amendment (and the rest of the Bill of Rights) as the French Revolution was occurring. News of the actions of the "Paris mob" spread to the New World as the ratification debate began. In nonetheless ratifying "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," the founding generation understood that the exercise of that right carries risks that violence will erupt. They simply judged that the alternative of suppression was worse.