As is so often the case in our polarized nation, current demonstrations and the law enforcement response to them have created a sharp debate. The issues are over-simplified so that the “good guys” and the “bad guys” can be identified without resorting to the color of their hats. Conservative columnist Jonah Goldberg probably is a bit unkind when, in a recent column, he proclaimed, “There’s idiocy on all sides in ‘law and order’ road show.” He is right in thinking that neither side in the debate is free from error.
We can start with the demonstrations and demonstrators, since without them there would be no debate. While the First Amendment to the U.S. Constitution guarantees the right to free speech and to petition in redress of grievances, it has long been recognized that these freedoms are not absolute. However, the general rule today is that speech can be limited only if is likely to incite “imminent lawless action.” [Brandenburg v. Ohio 395 U.S. 444 (1969)] Obviously, such a standard is still open to a wide variety of interpretations, but any challenge to the words spoken by those demonstrating in demand for criminal justice reform would have to stand the test. So far, that has not appeared to be a central issue.
The matter becomes more complicated when the demonstrations involve non-verbal actions. In general, non-verbal actions that are “peaceful” in that they do not harm persons or property should be, and often are, considered to be protected. When they are not peaceful, they should not be protected.
This is a big part of the demonstrators problem. As Attorney General Barr has pointed out, there is some evidence that non-peaceful elements have “high-jacked” some demonstrations. Throwing objects and fireworks at officers and setting fires cannot be considered peaceful acts. I suspect that most of those demonstrating would agree with that assessment. It probably correct to state that violent protesters are using peaceful protesters as “cover.” It is hard to demand that the peaceful protestors should abandon the field in the face of this problem.
Another difficulty with the demonstrations are the targets that they have chose in many circumstances. Federal court houses are poor targets. They obviously provide an excuse for a stronger governmental response to the demonstration itself. They are also symbols of the government least likely to provide effective reform of the sort sought by the protesters. Federal reform legislation will be dependent upon less than fully direct means of enforcement. State governments have immediate direct control over law enforcement behavior of their officers. Demonstrations should focus on those state and local officials most likely to provide meaningful relief. This is one of those awkward areas of our federal system of government. The most effective and quickest responses are likely to occur at the local level when community leaders meet with government officials and law enforcement leaders to seek solutions. Barriers to progress may be easier to define and reduced or eliminated.
Law enforcement has its share of problems as well. Yes, protecting Federal property is a legitimate role for Federal officers. Other activity is more problematic. Federal officials appear to be suggesting that a general elimination of violence in the streets falls within their purview. It does not. Unless there is a clearly identified Federal legal act involved, there is no role for Federal officers. In areas in which State and Federal jurisdictions overlap, cooperative activity on terms agree upon by both sides is usually the practice. Activities of the FBI, the DEA, and the ATF are cases in point. Unless state and local officials have requested assistance and agree to its terms, Federal involvement in local law enforcement would appear to be in violation of the Tenth Amendment to the U.S. Constitution.
A more intractable problem is the law enforcement response to large demonstrations. Even though the individuals engaged in lawless behavior may be few in number, the response is usually general. Peaceful protestors are prohibited from behaving lawfully, while acts of violence generally go unpunished. An arrest for “failure to disperse” is a poor substitute for an arrest for arson or assault. No peaceful protesters should be subject to chemical or other “non-lethal” control measures. The lawbreakers should be identified, fixed in place, and arrested.
Finally, to return to the demonstrators. They must help to purge their ranks of those whose behavior damages their cause. Help the police to identify the violent. Most importantly, they need to seek leaders in the mold of Gandhi, Nelson Mandela, Martin Luther King, and John Lewis. These were leaders who were determined, persistent, but peaceful. Without them little progress would have been made in the search for justice. Apparently, a clear majority of the people of this nation support criminal justice reform. The role of the peaceful demonstrator is to keep the issue alive and to encourage further support.