Since President Donald Trump took office, protests have dominated the news as both the left and right regularly use marches to voice discontent and to demonstrate power. Yet protests—often stemming from anti-war movements, labor unions, and student groups—have been an enduring feature of American public life and an expression of what we consider to be a fundamental American right: freedom of speech.
Freedom of speech is not absolute, however, nor is the freedom to protest. The law strives to regulate protest through a content-neutral approach that maintains free speech. But, in imposing such restrictions, states and institutions often reveal the whims of the zeitgeist, in effect creating borders, both real and imagined, that dictate when and where it is acceptable to voice dissent.
Since the beginning of 2017, 31 states have considered 64 bills—and passed nine—limiting the right to protest or enacting harsher penalties for protesters. As many states undertake an unprecedented effort to ban and criminalize protest altogether, here's a look at methods currently used to contain protests that belie the political mood.
As protest movements swell and attract attention, the state can dispatch law enforcement and the military to intimidate and to stop protesters. The ensuing standoff can create a no-go zone that sets the stage for confrontation. That frequently leads to violence, as with the 1968 Battle of Michigan Avenue during the Democratic National Convention in Chicago, when police charged protesters in a vicious crackdown that came to signify the collapse of American order. Standoffs can attract attention even when they maintain peace, as in iconic photos of young protesters placing flowers in the guns of soldiers.
More recently, amid flashpoints of violence, the standoff that began in 2016 between heavily armed law enforcement and protesters at Standing Rock over the Dakota Access Pipeline settled into a protracted stalemate. This standoff drew national attention to the longstanding struggle over indigenous land rights as well as environmental concerns. The battle has largely moved to the courtroom as protesters continue to fight charges, with Native Americans bearing the disproportionate brunt.
The concept of free-speech zones was largely introduced to college campuses in the 1960s as a space to contain the disruption caused by growing protests against the Vietnam War. They have since been adopted at several Democratic and Republican National Conventions, including the 2016 DNC, where they were used to exile Bernie Sanders supporters and others. The arbitrary size and application of free-speech zones demonstrate their capricious use: For example, a student at Los Angeles Pierce College was restricted to distributing Spanish-language copies of the United States Constitution in a free-speech zone the size of three parking spaces.
These zones offer authorities a simple solution to quell disruptive groups. But, in recent years, they've come under increasing attack from civil liberties advocates as well as from conservatives for the ways that they limit free speech. Attorney General Jeff Sessions and right-leaning groups like the Foundation for Individual Rights in Education have been fighting to dismantle free-speech zones, arguing that cordoning protesters suppresses free speech rather than preserves it.
Permits & Buffer Zones
As protests have become a more routine tactic for a range of interest groups, states have begun to require permits and enacted other rules to manage public demonstrations. While these rules provide a bureaucratic mechanism to maintain order, the boundaries they establish can be easily exploited.
In recent years, pro-life groups and the Westboro Baptist Church have stood at the edge of the law to propagate their messages. Pro-life groups have challenged buffer-zone laws requiring them to maintain a certain distance from abortion clinics, which vary state by state. In 2014, they won a victory when the Supreme Court declared buffer zones in Massachusetts unconstitutional.
In 2006, Albert Snyder sought damages from the Westboro Baptist Church after it picketed his son's military funeral service while complying with local law enforcement guidelines. Though the Supreme Court ultimately upheld the free speech rights of the church, it provided for states to pass buffer-zone laws restricting protest outside cemeteries and funeral homes. Congress passed a bill the following year requiring protesters to maintain a distance of at least 300 feet from military funerals and prohibiting demonstrations in the two hours before or after a funeral.
Widely used by London's Metropolitan Police from the mid-1990s on, kettling represents one of the more forceful ways the state can constrict protesters. Originating from the German word kessel, meaning cauldron or kettle, police use this tactic of corralling protesters to box them into a contained area. Though kettling, or encircling, will be more familiar to European protesters, police used it to "divide and conquer" protesters at the RNC in 2004 and, more recently, in New York and St. Louis.
Kettling attracted significant attention after police utilized the tactic to break up mass demonstrations in London on May Day in 2001 and again in 2009 during the G20 summit. Protesters and bystanders subsequently challenged kettling in the courts. While the British high court ruled its use during the G20 protests illegal, it sided with police regarding the May Day protests. The European Court of Human Rights later upheld the high court's decision, determining that it was the "least intrusive and most effective" tactic for police. Kettling remains a controversial method, especially as states increasingly favor nonlethal crowd-control techniques such as acoustic weapons, water cannons, and rubber bullets.