Rachel A. Harmon is the F.D.G. Ribble Professor of Law at University of Virginia School of Law.
Cities like Charlottesville face uncertain First Amendment obligations when confronting major events. In his thoughtful paper, “The Hostile Audience Revisited,” Frederick Schauer illustrates this uncertainty by raising several questions that arise from the Supreme Court’s “hostile audience” cases about how vigorously municipalities must protect speakers who generate a strong response, and at what cost to other public policy objectives. In this comment, I suggest that while the hostile audience doctrine imagines disfavored speakers in need of distinctive protection, for cities and towns, such speakers and those who would oppose them raise challenges far more like disorderly protesters than like a distinctive First Amendment phenomenon.
In First Amendment case law, courts protect identifiable speakers articulating unpopular messages from various forms of censorship and persecution. But on the ground, police departments face loosely organized and heterogeneous groups who often seek to bring about social change in ways other than speech. First Amendment doctrine cannot fully resolve the issues at stake. As a consequence of the mismatch between the doctrine and the political protests to which it often applies, cities face questions about protecting free expression that can only begin to be answered by satisfying the Constitution.
Police Rather than Prosecutors and Permits
The Supreme Court’s hostile audience cases have largely arisen through the same route: A speaker is prosecuted criminally in connection with an audience’s actual or expected response. For instance, Yetta Stromberg was convicted of “display[ing] a red flag and banner in a public place . . . as an invitation and stimulus to anarchistic action.”1 Arthur Terminiello was convicted for a breach of the peace for speech that “stirred people to anger, invited public dispute, or brought about a condition of unrest.”2 Dick Gregory was arrested for failing to disperse when the police ordered him to do so to prevent a crowd from becoming disorderly.3 In each case, an individual spoke, an audience reacted or threatened to react, a prosecutor charged a crime, and the defendant was convicted. Focused on such prosecutions, these cases collectively reject criminal charges that punish speakers for an audience’s response as inconsistent with the First Amendment. Notably, however, when the KKK and Unite the Right groups came to Charlottesville in the summer of 2017, prosecutors were entirely secondary in the city’s response. The more substantial issue that major events raise today for municipalities, Charlottesville among them, is how police should plan for and respond to substantial protest.
True, in Charlottesville there was conflict over whether the city would issue a permit for the proposed location of the rally. The city alleged that the park containing the Confederate statute at the center of the conflict was too small for the protesters and counter-protesters who might attend, and the organizers sued.4 That litigation echoed Forsyth County, Georgia v. Nationalist Movement, in which the Court found facially invalid a city ordinance that granted power to an administrator to set the cost of a permit based on his or her assessment of the likely response to the content of the speaker’s message.5 But the last-minute litigation was more sideshow than central to the planning process in Charlottesville, both for the city and for the rally’s participants.
Rather than prosecutors or permit administrators, in Charlottesville, as elsewhere, police officials took center stage in preparing for and handling the large-scale protests. And the First Amendment is only one piece of the law that governs encounters between the police and the public. Even as it bars certain law enforcement options, the First Amendment permits many others, leaving police substantial discretion to determine who gets to speak and what consequences exist for those who gather with something to say.
Certainly, as the cases above suggest, the First Amendment bars cities from choosing two otherwise potentially appealing solutions to the problem of unpopular speakers and their hostile audiences. First, in accordance with Forsyth County and similar cases, a city may not preempt the problem of counter-protesters by denying or taxing the speaker’s permit. Second, the First Amendment restricts law enforcement’s ability to deal with an otherwise peaceful speaker by silencing or arresting him in order to suppress his speech or stem a disorderly or potentially disorderly response, thus preventing the “heckler’s veto.”6
These restrictions are not trivial. But the police tactics they prohibit are hardly the only tools available for the job. Notwithstanding the First Amendment, police have considerable authority to tamp down threats to public order caused by either unruly speakers or hostile crowds using traditional law enforcement means, including orders to move along and arrests to enforce them.7 Most notably, a significant array of state criminal offenses and local ordinances regulate all kinds of public behavior, from felony assault to jaywalking. Pedestrian laws alone commonly prohibit crossing roads outside of marked crosswalks; walking in roadways when sidewalks are available; and willfully standing, sitting, or lying in a street in a manner that impedes the flow of traffic—all activities that protesters are wont to do. In many states, officers have the power to make arrests even for such violations, and in almost all states, otherwise ticketable offenses can be the basis of arrest if an officer reasonably believes the violator would otherwise continue the unlawful conduct. Fourth Amendment law only helps the police in this context, as it allows arrests even for minor offenses,8 it permits officers to make arrests pretextually,9 and it permits force as necessary to compel compliance.10 Although there are First Amendment limits on using these offenses to silence a speaker for stirring up a crowd, police can usually use arrests for minor crimes to impose peace and order well within these limits.
Despite this broad authority, best practices in policing protests have largely shifted over time from aggressively responding to threats to order, or what is often called an “escalated force” model, to less coercive means of addressing large-scale crowds, known as “negotiated management,” involving fewer arrests and more cooperation.11 When Professor Schauer notes that police often refrain from aggressively enforcing even laws against violence in the crowd context, he is noticing one consequence of this shift. But whatever policing strategy a department chooses, it is largely the police department rather than the law that determines what constitutes permissible protest and what instead represents a sufficient threat to public order to justify a forceful response.
Those police decisions are not the end of the discussion. When police departments tolerate low-level disorder or aggressively break up crowds, all of the officers know they will face a form of appellate review far more intensive than that of the courts. They will hear directly from the press and the public, and when they make similar decisions again, they will read the responses to earlier protests as relevant precedent. In this light, many have speculated that Charlottesville police were reluctant to make arrests at the Unite the Right rally on August 12 in part because of the community outcry they faced for arrests made on July 8 when the KKK came to town.12
Moreover, the remedies at issue are far more often political than legal. In Charlottesville, debates about whether the police chief, city manager, and mayor should keep or lose their jobs are likely to prove more salient than court fights over their conduct.13 And justly so. Communities understand that poor strategies for handling protests—whether too aggressive or under-protective—can breed distrust in law enforcement and local government, which in turn can undermine a community’s other policy and public safety goals. The upshot is that community views about the value of free speech, the costs of police coercion, and the ongoing consequences of distrust of law enforcement are at least as likely as the law to influence how much unpopular speakers and hostile audiences are permitted to express themselves.
Movements not Messengers
Not only do police regulated by political influence govern speech more than prosecutors and permit administrators constrained by the First Amendment, the “hostile audience” cases also can mislead in describing the actors on the other side of the free speech equation, by depicting distinct speakers opposed by contentious crowds.
First, as Schauer notes, hostile audiences are themselves speakers. Once one accepts the First Amendment principle that would-be speakers cannot lightly be penalized because of actual or expected responses to their message, speakers and audiences start to look simply like competing claimants for the public’s eye and ear. In fact, from the ground, hostile audiences look very much like other crowds with something to say, whether what they want to talk about is the KKK, police violence, or Wall Street’s greed and corruption.
In all likelihood, the possibility of violent clashes is heightened by competing messages and by objectionable speakers, like those who descended on Charlottesville for the Unite the Right rally. But many protests become violent even when no rival voices show up. Protests such as those after the death of Michael Brown in Ferguson, Missouri, in 2014 and against the World Trade Organization in Seattle in 1999 managed to generate violence and arrests, strain public services, and interfere with activities of the public all without an unpopular speaker to target. A motivated crowd with a message is enough to generate a challenge for cities. The fact that the message is hostile to another speaker merely adds complexity to the event.
Second, some of the “speakers” that cities face in protests do not intend to communicate a message in the way the First Amendment doctrine imagines. The only definitional commonality that all protesters necessarily share is the desire to collect en masse in a public space. The First Amendment cases protect speech and other forms of expressive conduct, so they talk mostly about individuals and groups who seek to persuade an audience or highlight a cause. But others attending the same protests may instead pursue social change by disruption, obstruction, or even destruction. Police thus face groups with mixed and sometimes incompatible strategies operating in fluid interaction. In such a case, who is the hostile audience and who is the speaker? The consequence of mixed crowds is that cities face nearly the same predicament regardless of the extent to which some protesters prioritize speech over other goals.
Whatever the First Amendment says about governments remaining content-neutral in their approach to speech, what goals the protesters seek and what methods they employ have enormous consequences for how they are policed. The shift to “negotiated management” depends on an alignment of interests between those who want the opportunity to convey a message peacefully and a law enforcement agency willing to value speech at the same time that it seeks to promote public safety. According to this model, protest groups assign representatives to meet with the department and cooperate in developing terms for the events, including what conduct will trigger arrests and what lawbreaking will be ignored.14 But this model can only work with protesters who are willing and able to negotiate. When protests are conceived on social media, or when their leadership is diffuse, there may be no group sufficiently organized to negotiate effectively, even if some elements want to do so. And when protesters reject police as illegitimate and view self-restraint in cooperation with the police as a form of repression, they may be unwilling to work with police to ensure the peace.
Either way, protesters who do not negotiate may face more coercive policing. One modern coercive strategy, sometimes called “strategic incapacitation,” involves close surveillance, preemptive arrests, and tight control over the location of protesters. When used on the Occupy Wall Street protests in New York City in 2011, it involved creating free speech zones, where protesters were channeled into public spaces delimited by hard barriers, outside of which policing took aggressive forms.15 In this way, despite the First Amendment, the tactics law enforcement chooses, though neutral in principle, are necessarily bound to the content of the protesters’ ideas, which in turn dictate their readiness to cooperate in advance with law enforcement.
In this light, as hateful as the group’s message is and as perverse as it may seem, a group like the Pelham, North Carolina, chapter of the KKK that visited Charlottesville on July 8 is an ideal speaker from a police planning perspective. These KKK members were organized, coherent, and identifiable by their black shirts, white robes, and Confederate flags. They coordinated with police regarding their arrival, their rally, and their departure, and they followed police instructions during the event. And the police protected them in precisely the way the cases envisioned. Only counter-protesters clashed with police, leading to disorder and more than 20 arrests.16 By contrast, the more tragic events of August 12 arose in part because so many disparate groups descended on Charlottesville, some with violent agendas, and few could have engaged in advance planning with law enforcement.
Whatever the failings of city government and state and local law enforcement on August 12 in Charlottesville—and those failings were many—one has to acknowledge the magnitude of the challenge cities can face. Protesters unwilling to negotiate terms that maximize expression and preserve order in public spaces pose a predicament for communities that prize both free speech and public order, and the First Amendment is only a starting point for understanding the values at stake and the legal tools and constraints applicable to efforts to maintain order.
First Amendment values remain central to how communities grapple with public protest. But the complexity of contemporary protest goes far beyond the hostile audience doctrine’s images of unpopular speakers and disorderly listeners. As a consequence, doctrine will often be less important than political will and participant preferences in determining what our system of free expression looks like on the streets.
1 Stromberg v. California, 283 U.S. 359, 361 (1931).
2 Terminiello v. Chicago, 337 U.S. 1, 5 (1949).
3 Gregory v. City of Chicago, 394 U.S. 111 (1969).
4 See Chris Suarez, City Sued over Rally Permit Decision, Daily Progress (Aug. 10, 2017), http://www.dailyprogress.com/news/local/city-sued-over-rally-permit-decision/article_5255aa5e-7e1f-11e7-8a16-e37d2241f987.html.
5 505 U.S. 123 (1992).
6 See, e.g., Gregory v. City of Chicago, 394 U.S. 111 (1969); Cox v. Louisiana, 379 U.S. 536, 550 (1965).
7 See Feiner v. New York, 340 U.S. 315 (1951).
8 See Atwater v. Lago Vista, 532 U.S. 318 (2001).
9 See Whren v. United States, 517 U.S. 806 (1996).
10 See Graham v. Connor, 490 U.S. 390, 396 (1989).
11 See Clark McPhail et al., Policing Protest in the United States: 1960-1995, in Policing Protest: The Control of Mass Demonstrations in Western Democracies 49 (Donatella della Porta & Herbert Reiter eds., 1998).
12 See, e.g., David A. Graham, Could Police Have Prevented Bloodshed in Charlottesville?, Atlantic (Aug. 14, 2017), https://www.theatlantic.com/politics/archive/2017/08/could-the-police-have-prevented-bloodshed-in-charlottesville/536775.
13 See, e.g., Chris Suarez, City Council Memo Leaked, Daily Progress (Aug. 25, 2017), http://www.dailyprogress.com/news/local/leaked-memo-shows-councilors-grilled-city-manager-on-rally-response/article_c95a9388-89ac-11e7-ae33-c7cced6877e7.html.
14 See McPhail et al., supra note 11, at 52-54.
15 See Patrick F. Gillhan et al., Strategic Incapacitation and the Policing of Occupy Wall Street Protests in New York City, 2011, 23 Policing and Soc’y 81 (2013).
16 See Dean Seal, KKK Rally in Charlottesville Eclipsed by Protests, Daily Progress (July 8, 2017), http://www.dailyprogress.com/news/local/kkk-rally-in-charlottesville-eclipsed-by-protests/article_f13cde22-6415-11e7-9756-c3a385058998.html.