Examining the Right to Protest

Examining the Right to Protest looks at two of the most influential cases towards the right to protest. The National Socialist Party v. The village of Stokie and Oregon v. De Jonge and looks at how those cases can be applied today with protests.

By Faith Wallace from Morehead Writing Project in Kentucky

The right to petition is an ideal that every citizen should have. It goes back to the English legal reform movement, which created important documents like Magna Carta and expressed the ideals of English men which would later be considered in our own revolution. Americans, seeing the tyranachy of their former government, would later put these words to paper, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This was aired on the most highest piece of paper, the Constitution of the United States, and has been presented as an ideal that Americans hold to this day.

The legality of the first amendment, particularly the right to assemble, has changed throughout the century. In the 1600’s through the 1700’s the right to assembly was fought and defended. In the 1600’s the Massachusetts Body of Liberties the first legal code describing the liberties of citizens occurred. In the 1700’s, the Declaration of Independence and the Bill of Rights were enacted. In the 1800’s, things took a turn and the idea of peaceful assembly was thought to be something only the federal government could violate. We know this is not true with police in Oakland tear gassing several protesters before the designated curfew according to KTSU news.

With this in mind the case that changed the current perception of that time was Oregon v. De Jonge in 1936. De Jonge was arrested on criminal syndicalism. Criminal syndicalism is when people advocate for crime, violence, and other unlawful acts to set change or revolution. In this case, he was attending a communist meeting and spoke against the county jails and the actions of the police involving the maritime strike. He was arrested for speaking at the communist meeting creating a question of his right to petition against the right for safety as the Soviet Union threat was emerging. The Supreme Court took De Jonge’s side and decided the right to petition can be abused by forms of government smaller than the federal state.

The thought of defending those who we as a society hated is a classical first amendment case. That thought carries on in the National Socialist Party v. Village of Stokie. Stokie is a village with 70,000 people, of whom 45,000 were Jews, and of that population 5,000-7,000 were concentration camp survivors. Frank Collin, the leader of the National Socalist Party, made a call to Stokie police officials. He applied for a permit to march in Skokie. The march would have thirty to fifty people all in swastikas marching single filed. Collin said that the demonstrators would not make belittling public statements and would cooperate with the police. Two weeks later the Skokie Board of Commissioners required that protesters have to pay a $350,000 insurance bond. Then the Board passed a law banning material that promoted hatred and walking in uniforms. The Nazis argued that these laws were against the 1st amendment and went to court.

The case went from the Cook County Circuit Court, to the Illinois Appellate Court, then the Illinois Supreme Court, to finally the Supreme Court. To which the Supreme Court established that “public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The Court then examined if the march contained fighting words that would cover the legality of the suppression of speech. Fighting words are words that only incite violence or create injury. The Court looked at Cohen v. California, a case that involved fighting words, in which the majority thought that government restriction to freedom of speech should be in cases of most severity. Using that case they decided it would be hard for the government to decide what symbols or speech are defined as first amendment protections and what does not. This case clarified that Americans have the right to march no matter what their message is.

Currently, there is a struggle between the people and the protection of the first amendment: freedom of speech and assembly. All over the country, people are holding demonstrations to show their dissatisfaction with police brutality. There have been ideas to defund or disband the police, which has been proposed by Minneapolis City Council. This idea poses challenges. The police are meant to be there for those who are in danger and likely to be hurt or ‘protect and serve’. Full abolishment of the police force is just ignoring the problem and taking away help to those who are in need. The power needs to be on the states to make local change. Aniesha Mitchell, the director of Student Conduct and Community Standards at U.C. says, “Diversity of police officers, training, accountability, and community policing could be effective to take steps to rebuild trust in the community”.She also notes that officers could learn from implicit bias training but believes body cameras are useless if officers can turn them on and off. A national solution to this matter is Cory Booker’s Comprehensive Police Reform. In this law, it writes about reforming 18 U.S.C. Section 42, which will give states the power to hold officers accountable. Have the National Government keep track of police brutality and make sure that these officers are not changing departments. Incentivizing states to adopt policies banning no-knock warrant and choke hold may also be effective. There has also been bipartisan support for a bill that will demilitarize the police. The pressure needs to be on each state and municipality to change the laws. Enacting change through laws is the only way Americans can strengthen their community.

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