Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
Students at colleges across the country, and here in New Hampshire, are holding demonstrations on their campuses in solidarity with Palestine. Close to a hundred people were arrested at Dartmouth College and the University of New Hampshire during protests this month.
Civics 101 co-host Nick Capodice joins us this week to talk about the history of protests in the U.S., and what kind of protest activity is protected under the First Amendment.
Transcript
First, what are our rights to protest, constitutionally?
Well, they are in my favorite amendment to the Constitution. That is the First Amendment. Now, this amendment, which we usually associate with speech, it has five protections under it. And protest kind of falls under a few of those. The First Amendment protects freedom of speech, yes, but also "the right of the people to peaceably assemble or petition the government for a redress of grievances." Some people look at those two, the assembly and the petition, kind of as a grouped freedom. Assembly is gathering with other people and petitioning is communicating, often your displeasure, with the government. And protest is kind of a combination of both of these.
When we look back at U.S. history, Nick, how has the right to protest been expanded or restricted over time?
Well, I'll start with the restriction, Julia. Like all of the great sweeping protections given to us by the Constitution and its amendments over the course of our existence as a nation, the Supreme Court has sort of narrowed what is and is not protected speech. The very first cases that involved the First Amendment were about protest in the 1920s. This is a trio of cases — Schenck, Gitlow and Whitney — where people were protesting World War I. Schenck handed out leaflets saying resist the draft. Gitlow wrote a left wing manifesto, and Whitney maybe attended a protest herself. In each of those cases, though, the Supreme Court found that speech against the war, or the government or the draft is not protected speech. And the Schenck opinion had a very important line. Speech could be restricted if it creates "a clear and present danger that will bring about the substantive evils which Congress has a right to prevent."
And whose rights to protest have been protected?
Yeah, it's pretty rare, honestly, for the Supreme Court to make a ruling that expands speech instead of restricting it. Two of the big outliers are Texas v. Johnson and Tinker v. Des Moines. Texas v. Johnson found that burning a flag is protected speech, and Tinker found that students in school have a right to freedom of speech or expression. However, in Tinker's case, subsequent rulings have said that you have a freedom of speech in school unless: dot, dot, dot. And there are myriad reasons that schools have used to justify suppressing student speech.
So when Americans protest today, what can they do and what can't they do? What should someone who wants to protest know?
Well, I think what I want to say here is if someone is protesting now, peaceably assembling, petitioning the government for a redress of grievances, they should know that the Constitution is not a shield. The Constitution did not save the lives of those who put their bodies on the line to advance civil rights in the 1960s, and it will not stop a bullet or a baton. And I want to add, in our episode about protest, we talked to two scholars who had protested themselves. Alvin Tillery pointed out to us that our nation is born out of protest. Julia, the Boston Tea Party is complicated, but you know, the truth of it is it was not a peaceable assembly. A staggering amount of property was destroyed during the Boston Tea Party, and that made us who we are. Our other guest, Bakari Sellers, whose father was a renowned civil rights protester, gave this advice, and I'm going to quote his advice directly here: "Your number one goal should not be to give a police officer a legal lesson on the streets. Your number one goal should be to make it home safely. Knowing your rights is important. Making it home safely is much more important."