Militarized Policing Tactics Tread Upon First Amendment Rights

By Dreshawn McFadden, Staff Member Vol. 19

Free Speech and the Chilling Effects of Police Tactics

During my first year of law school, I was reintroduced to the renowned First Amendment to the US Constitution, which states, “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble[.]” It took me a while, however, to understand that “peaceably” was the operative word. There are limits to the First Amendment, such as breach of peace laws.

Were the George Floyd protests “peaceful”? Absolutely. Media outlets report that the vast majority of protestor appeared to be peaceful. Although most of the protests over the killing of George Floyd were mostly peaceful, thousands of protestors were still subject to rubber bullets, tear gas, intimidation by law enforcement, and citywide curfews. “Non-lethal” weapons, such as rubber bullets, can break bones and cause internal injuries. Would this have some effect on whether individuals decide to protest? Absolutely. 

If “non-lethal” weapons that can cause devastating bodily harm to a peaceful protestor do not abridge the right of people to peaceably assemble, what does? The use of these methods does more harm than good.

Justice Kennedy in Lozmon v. City of Riviera Beach, Florida, found that “there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Today, “non-lethal” weapons, and arrest, are being used as a mechanism to chill free speech and prevent the free marketplace of ideas.

There is wide controversy surrounding the use of rubber bullets on protestors. These bullets are often fired into a crowd of people who simply want their voices to be heard, and their speech to be protected. Imagine the dispiriting moment of shouting an activism chant, “No Justice, No Peace,” then a rubber bullets hits your body while you’re standing in the midst of hundreds of protestors.

Other forms of crowd control are more difficult to analyze under the First Amendment. Government can impose content-neutral restrictions limiting where and when speech can take place, as long as there is a sufficient alternative avenue for speech. Curfews, government policies that order persons to be off the streets for a particular duration of time, appear to be a content neutral restriction, but the fact that they are only applied in certain circumstances belies their content neutrality. Even still, it is difficult to show that curfews are an attempt to quell First Amendment rights.

Lower courts are split over the constitutionality of curfews, even with a First Amendment defense.  Curfews were discriminatorily imposed on racial minorities during the Jim Crow era and are repulsive to those who seek to exercise their First Amendment rights. Setting a curfew is one of the most popular options for governments that seek to chill protests, constitutionally protected speech.

Curfews tremendously curtail where and when speech takes places by limiting individuals’ ability to meet in public spaces, like streets and parks. The alternative for people to “peacefully protest” is to assemble over social media. But is that a sufficient alternative to in-person protest? Although various social media platforms have helped to spread awareness about police misconduct, the staple of any successful social justice movement has been protests and marches. A protest that brings thousands of people together from all over the country displays unity.

In today’s time, it is not difficult for something to “go viral” by garnering enough amusement and laughter, or dissatisfaction and disgust. With viral videos and images of police brutality spreading rapidly across the Internet, social media has proven to be a useful asset for creating awareness surrounding social justice issues. However, social media does not do justice to the power of in-person protest. To reform systems and policies, we must organize in-person. American citizens have refused to stand idly by while rubber bullets, tear gas, curfews, and other crowd control measures are used against protestors. Police claim that they are protecting people’s property, but the government and law enforcement also have a duty to ensure protestors’ ability to speak. It is troubling to watch an institution of people, who are supposed to be protecting our rights, infringing upon them.

Conclusion

Visualize the heartbreaking experience of enduring police brutality during a protest against police brutality. Protecting the speech of protestors who condemn police brutality shows a sense of impartiality. It means that our society values the right of everyone to address issues that they feel are pertinent. In short, some of law enforcement has deprived protestors of their First Amendment right to peacefully assemble. We understand government’s desire to prevent riots, looting, and destruction of businesses, but tasers, rubber bullets, tear gas, arrests, discriminatory curfews and other harmful methods should not be used against protestors unless absolutely unavoidable. Otherwise, the result is suppressing voices that have a right to be heard.