The Supreme Court's Failure To Protect The Right To Assemble Has Led Directly To Violence Against Protesters

Free Speech

from the SCOTUS:-you-get-what-the-government-gives-you dept

It appears the Supreme Court is unwilling to address a another problem it created.

The first major problem created by the Court has been discussed here quite frequently. Qualified immunity was created by the Supreme Court in 1967 as a way to excuse rash decisions by law enforcement if undertaken in “good faith.” Since then, it has only gotten worse. Fifteen years later, the Supreme Court added another factor: a violation of rights must be “clearly established” as a violation before a public servant can be held accountable for violating the right. Further decisions moved courts away from determining whether or not a rights violation took place, relying instead on steadily-decreasing precedent showing this violation was “clearly established.”

The Supreme Court continues to dodge qualified immunity cases that might make it rethink the leeway it has granted to abusive cops. Plenty of people have taken note of this, including federal court judges.

But that’s not the only way the general public is being screwed by SCOTUS. As Kia Rahnama points out for Politico, the right to freely assemble — long-considered an integral part of the First Amendment — continues to be narrowed by the nation’s top court. As violence against demonstrators increases in response to ongoing protests over abusive policing (enabled by qualified immunity’s mission creep), those participating in the violence feel pretty secure in the fact they’ll never have to answer for the rights violations.

For more than 30 years, the Supreme Court has failed to take up a freedom-of-assembly case. As a result, this fundamental constitutional right is in sore need of an update, such as a ruling that would protect protesters from the unduly harsh police response that has become all too common as a response to demonstrations in recent years.

It’s not that freedom of assembly is novel — something newly-constructed by court rulings. It’s been around since the creation of the Constitution. The founders recognized the fact a group of aligned people had more chance of effecting change than separate individuals. But, as Rahnama points out, the Supreme Court has not taken up a case involving freedom of assembly in more than fifty years, allowing this right to be subject to decisions more than century old that limited speech in favor of protecting companies from their employees.

The Supreme Court shirked this responsibility first by holding that the right to assembly did not protect anything like the right to protest in the streets, beginning with a formative ruling in 1886. At the time, labor unrest and revolt were widespread, and many state governments were passing laws aimed at preventing potential insurrections by workers’ organizations.

The court said that if groups of people wanted to seek redress for their grievances, they were welcome to form political groups or engage in lobbying. The right to protest went from “established” to “only in some cases.”

It’s not that the court doesn’t recognize the chilling effect created by government actions taken against speech and speakers they don’t care for. It does. But it has refused to apply this theory to excessive force and overbearing crowd control tactics that are far more violent than they need to be.

The courts’ failure to update Americans’ understanding of the freedom of assembly has given law enforcement free rein to deploy strategies that increasingly have the potential to deter future participation in protests. This is nowhere more evident than in the type of the cases that make their way to the courts. Whereas 10 years ago the courts had to decide whether NYPD’s use of mounted police that frequently stepped on protesters’ feet was objectionable (they decided that it was not), today they hear cases about armies of special forces equipped with riot gear, chemical weapons and other top-level military-grade weaponry. Every step of this transformation in policing crowds has been fueled by the courts’ refusal to rein in the proclivity for an increasingly stronger show of force.

The fewer cases the court is willing to hear, the less precedent there is preventing law enforcement from engaging in violence against protesters, whether it’s the indiscriminate use of tear gas or the direct targeting of protesters with “non-lethal” munitions that still have the capability to seriously injure.

The court has spent years refusing to rein this in. The end result of its inactivity is being observed around the nation as protests are greeted with paramilitary shows of force. By the time the court gets around to addressing this, it will be too late for those on the receiving end of this violence. No right to be free from tear-gassing and rubber bullets will have been clearly established.

Filed Under: 1st amendment, protests, right to assemble, supreme court