The Right to Assemble: Responding to Protests, Spontaneous Gatherings, and Counter-Demonstrations

The right to assemble is protected under both the First Amendment of the United States Constitution (“Congress shall make no law…abridging…the right of the people peaceably to assemble…”) and the Washington State Constitution Article I Section 4 (“The right of…the people peaceably to assemble for the common good shall never be abridged”). In De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937), the United States Supreme Court recognized that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental,” while reversing the conviction of defendant for “criminal syndicalism” (i.e., assisting in the conduct of a meeting of the Communist Party).

We live in a time of increasing political polarization during a pandemic. This blog will explore the right to assemble in connection with protests and gatherings in outdoor public places and provide thoughts on how local governments can respond to situations that may arise.

Can a Local Government Require a Permit to Assemble?

A local government may do so only if the nature or size of the gathering is one that requires local government services or crowd control. Consider a hypothetical: A group of 15 to 20 individuals want to express their opposition to a piece of legislation being considered by Congress. They plan to march from a city park to city hall chanting slogans and holding protest signs, all while obeying traffic laws and staying on the sidewalks. Under those facts, a city would not have a basis for requiring a permit because the event is consistent with ordinary use of public property and the public right-of-way.

Most cities and counties have special event regulations that address gatherings of a certain size (for example, over 50 participants) or gatherings that disrupt the normal and ordinary use of right-of-way, public property, or public facilities. It is common to differentiate between “First Amendment” or “expressive” events, in which the primary purpose is conveying a viewpoint, versus other types of events, such as street fairs, community celebrations, or parades, which are not primarily expressive in nature. Care should be taken not to impose unreasonable restrictions on expressive events because the restrictions may be subject to strict scrutiny by the courts. For more information and examples of regulations, see MRSC’s Special Events Permits webpage.

Can a Local Government Impose Permit Conditions on Events?

A local government’s ability to restrict expressive conduct in a traditional public forum (which includes parks and streets) is quite limited. Known as “time, place, and manner” restrictions, these must be content-neutral, narrowly tailored to serve a compelling government interest, and leave open ample channels for communication of the information. In addition, regulations must not place unduly broad discretion for approving or imposing conditions on expressive conduct into the hands of a government official.

MRSC is sometimes asked whether a local government can require organizers of an event involving expressive activity to obtain insurance coverage. For non-expressive special events, it is common to require event organizers provide liability insurance. However, the analysis changes when the event involves expressive speech or protest. In Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1030 (9th Cir. 2009), the Federal Ninth Circuit Court ruled that insurance can be required in some cases but the requirement cannot operate as a bar to First Amendment activity. This case upheld the city’s insurance provision since its ordinance provided alternatives to insurance, such as indemnification of the city by event organizers or redesign of the event to address liability concerns.

A related question is whether a local government can charge permit fees and recover the costs of its response to an expressive event (such as crowd or traffic control) from event organizers. In theory, such costs may be recovered, but courts closely scrutinize the regulations under which fees and costs are assessed as well as the decisions made by government officials when implementing those regulations.

For example, in Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123 (1992), the U.S. Supreme Court struck down an ordinance that authorized imposition of a permit fee in an amount not to exceed $1,000. The court noted that the ordinance did not contain ascertainable standards for setting the fee and that the county administrator had “unbridled discretion” to charge the fee of his or her choosing. The court also found the popularity or unpopularity of the message cannot play a role in the amount of the fees or costs, stating:

Listeners’ reaction to speech is not a content-neutral basis for regulation. [citations omitted] Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

Permit fees and insurance requirements are risky in the context of political protests and gatherings. Local governments should consider these issues in detail with their legal counsel and insurance provider before deciding whether such requirements should be imposed.

Can a Local Government Regulate the Carrying of Firearms at Political Protests?

Washington is an open-carry state, but state law regulates the manner in which firearms can be carried or displayed. State law also prohibits aiming firearms at others and discharging firearms in public places. MRSC published a blog article in July 2020 that provides more information on what is and is not allowed.

What about COVID-19?

Political protests have continued to occur during the COVID-19 emergency on a wide range of issues. The governor’s emergency proclamations do not specifically address the First Amendment right to speech and assembly but COVID-19 restrictions can be used for guidance on determining reasonable permit conditions for protests and gatherings. For example, rather than denying a permit to assemble, a local government could impose permit conditions that minimize the risk of COVID-19 transmission, such as requiring that the event be held outdoors and that participants observe social distancing and wear masks.

What about Spontaneous and Recurring Events?

Not all protests and gatherings are planned in advance — sometimes they are an immediate response to a breaking news event. The City of Long Beach case struck down the city’s attempt to regulate spontaneous events in part because of a 24-hour notice requirement that applied broadly to “spontaneous” events. The court found that the notice requirement was not narrowly tailored to the type of spontaneous events for which the city would need advance notice and that there were not sufficient alternative means for expression.

From a practical standpoint, local governments should be prepared for the possibility of political demonstrations and gatherings with little or no advanced warning. Spontaneous and recurring events are often organized and publicized through social media, making it difficult for a local government to identify individuals responsible for the event.

Some of the issues associated with spontaneous and recurring events are described in Black Lives Matter Seattle-King Cty. v. City of Seattle, 466 F. Supp. 3d 1206 (W.D. Wash. 2020), which involved the Seattle Police Department’s response to demonstrations that arose after the killing of George Floyd. Black Lives Matter Seattle-King County sought a temporary restraining order, claiming that police made indiscriminate use of tear gas, pepper spray, flash bang devices, and foam-tip bullets (collectively referred to as “crowd control weapons”) against peaceful protesters.

At the outset, the Federal District Court for the Western District of Washington stated that people have the right to peacefully demonstrate and protest without fear of government retaliation, while at the same time acknowledging that police officers must make split-second decisions about protecting people and property, often while in harm’s way. It recognized the difficulty in drawing an enforceable line that permits police officers to use appropriate means in response to violence and destruction of property, one that also does not chill free speech or abuse those who wish to exercise it.

Based on a finding that police used crowd control weapons against peaceful protestors, the court issued a temporary restraining order placing significant limitations on the ability of police to use these weapons. The court, quoting Collins v. Jordan, 110 F.3d 1363, 1372 (9th Cir. 1996), noted:

[T]he proper response to potential and actual violence is for the government to ensure an adequate police presence, and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment conduct as a prophylactic measure.

What Happens When Counter Demonstrators Show Up?

Counter demonstrations can raise concerns for local governments because they can increase the chances of verbal or physical altercations between protest groups. Cases have upheld the ability of local government to create separate “protest zones” for protesters. Analytically, such actions are valid time, place, and manner restrictions so long as the reasons for them are content-neutral and not based on agreement or disagreement with the views of a protest group. See, e.g., Wood v. Moss, 572 U.S. 744, (2014), which found the Secret Service had legitimate security reasons for moving opponents of President George W. Bush to a location further away than where his supporters were allowed to congregate, or Startzell v. City of Philadelphia, 533 F.3d 183 (3d Cir. 2008), which found the city was justified in removing an anti-gay religious group from an area used for the LGBT OutFest event based on conduct that disrupted the event, as opposed to city disagreement with the views of the religious group.

Conclusion

Managing the local government response to demonstrations and protests can be exceedingly difficult. The emotions of participants can often run high and unanticipated developments may require that complex decisions be made on very short notice, sometimes with incomplete information.

Upholding the right to free speech and assembly is a fundamental purpose of government. If providing a forum for people to air their political concerns feels like a heavy lift, perhaps it is helpful to remember the words of Justice Louis Brandeis on the fundamental role of political speech and assembly in our democracy:

[Our founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Whitney v. California, 274 U.S. 357, 375 (1927) (concurring opinion).