Now More than Ever, We Need Robust Protections for Right to Protest

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When protesters started to show up outside Congressman Darrell Issa’s district office in Vista earlier this year, the city tried to shush them away – sending them across the street and silencing their bullhorns.

The ACLU of San Diego and Imperial Counties sent a letter to city officials telling them that’s not the way the First Amendment works. Later, the city agreed and withdrew restrictions imposed on the peaceful, one-hour, weekly protests led by one of Issa’s constituents.

That was a victory for free speech but the people’s right to protest is under assault in America and it cannot be taken for granted.

Since last year’s presidential election, 22 state legislatures have considered 31 anti-protest bills. Fourteen have been defeated, but 10 are pending and seven have passed — including laws in South Dakota and Tennessee against blocking streets during demonstrations.

The United States’ commitment to the First Amendment has been on the decline since before the election.
In July 2016, Maina Kiai, the United Nations’ special rapporteur on the rights to freedom of peaceful assembly and of association, undertook an official mission to the U.S. to assess our country’s commitment to freedom of assembly and protest.

When he completed his trip, he observed that Americans “have good reason to be angry and frustrated at the moment.”
Kiai then went on to explain that it’s our First Amendment freedoms that ensure that anger and political disagreement don’t fester into violence. “And it is at times like these when robust promotion of assembly and association rights are needed most,” he said. “These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them.”

What happened in Vista is just one example of local governments’ attempt to squelch public protests.
For months, Ellen Montanari organized protests outside Issa’s office to voice concerns over Issa’s public policies, including Issa’s vote to repeal Obamacare. These days, people are eager to express their dissatisfaction with Issa’s performance and Montanari’s protests have given them a platform to do it. So every Tuesday, the protesters show up for an hour-long peaceful rally outside of Issa’s office, and the city of Vista took notice.

The protesters gathered on the public sidewalk next to Issa’s office building to exercise their First Amendment rights. But then the city decided to place several additional restrictions on the protest permit issued to Montanari. The protests were relegated to a dirt path on the opposite side of the road. Taking direct aim at Montanari, the permit also made her financially responsible for the behavior of all the protesters who show up.

The actions taken by the city were unconstitutional. The Supreme Court has ruled repeatedly that public sidewalks are one of the places where our First Amendment rights are at their most robust. A government restriction on sidewalk protests can be justified only by the most compelling and fact-based need — and that reason can never include the government’s desire that a protest be less visible or less critical.

On June 1, the ACLU of San Diego and Imperial Counties issued a letter to the city of Vista seeking the removal of the unconstitutional restrictions in the permit granted to Ellen Montanari. In our letter, we made it clear that the city cannot ban protest from a public sidewalk or make Ms. Montanari responsible for the conduct of others. We also explained to the city that it cannot bill protesters for any law enforcement response and reminded it cannot ban the use of bullhorns or microphones by protesters.

Despite the clear constitutional problems, Congressman Issa also issued a letter complaining about the “loud gatherings” and asking the city to “enforce the existing ordinances to ensure the safety of all participating parties and to address the concerns of nonparticipants in the building and surrounding area.”

To the city’s credit, officials issued a new permit on June 27 without the restrictions. It was a victory for free speech in our region but there are many other challenges that remain.

The ACLU would like you to join us as we fight to protect civil rights in the region. For more information, visit www.aclusandiego.org

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