Much has been made of the right to protest and freedom of speech that it is obvious that a lot of people don't understand the historical contexts and interpretations of both issues. In this article, I would like to address some of the issues surrounding these two topics as well as the subject of civil disobedience, which is, perhaps one of the most misunderstood topics of this era.
The right to protest is certainly a de facto right that has been upheld consistently through various Supreme Court challenges through the years. However, it is also important to note that those same challenges have set parameters that responsible protestors must obey if they are to have the legal protection they desire. Permits and zones set aside for protests have not generally been intended for restricted speech for protestors; they have, to the contrary, been set aside to aid the police in the difficult task of protecting and maintaining the rights of the protestors, as well as the targets of their protest. In certain high profile recent cases, however, they have been used to move the protestors away from the object of their protests, and, though I feel this is wrong, I feel a battle for tighter regulation will only decrease, not increase, protestor's rights.
In the area of free speech, we must also remember traditional SCOTUS interpretations of these rights, beginning only a few short years after the ratification of the constitution, have held that, while we have the right to speak freely, such rights do not confer immunity from prosecution for the consequences of our actions. In 1913, for instance, copper bosses held the door to a large assembly hall where the miners were having a Christmas party. They yelled "fire!" and held the door against the onslaught of miners and their families who tried to get out. 73 died that day, mostly children, and the perpetrators of the act tried to hide behind "freedom of speech" for their actions. They failed. This is where we get the saying "freedom of speech does not mean freedom to yell fire in a crowded theater".
On to the meat of my argument. The legal restrictions on both of the aforementioned subjects are largely irrelevant points when we look at the purpose of civil disobedience. Civil disobedience, by its very definition, is resistance, usually and hopefully peaceful, to a law that one considers unjust in the hopes of changing or drawing attention to that law. Historical examples of civil disobedience include Rosa Parks, and the various sit-ins at "whites only" lunch counters throughout the South, in the 1960's. The protestors did not protest against the police that they had no right to arrest them; such rights were already established. But rather, they allowed the police to arrest them, and in many cases went along quietly, and in doing so, national attention became focused on these injustices.
Many current protestors who claim to be exercising civil disobedience miss the point. In many cases, the object of civil disobedience is actually to be arrested, as the intended battleground is the courtroom, not the streets (It's also important to note here that if your arrest is for something not related to the point of the civil disobedience, ie, disturbing the peace, resisting arrest, obstructing a public thoroughfare, that the purpose of civil disobedience is often lost, as those are the charges the DA will lean most heavily on to make their case).
One example I found of an area where civil disobedience could have been used effectively was when Rudy Guiliani proposed a law forcing the homeless who refused to go to shelters to go to jail instead. While groups continued to decry this, I remarked to my wife that the solution was obvious: if you could garner every homeless activist across the country to travel to NY, get arrested under that law, and flood the jails, you would quickly force the city to reevaluate that law. The problem was in finding the activists willing to get arrested.
If you choose the path of civil disobedience, it is a noble and honorable one to follow. But if you expect to walk down that path, expect to spend some time in jail. It comes with the territory.
signing off,
Gideon MacLeish