Freedom of Expression and the Right to Protest – From Case Law to Ground Theory

“While respect for the rights enshrined in the Constitution should, in theory, be nonpartisan, protest has long been and remains a fiercely political issue, particularly as a form of expression often wielded against those currently holding political power.”

– PEN America, from Arresting Dissent.

Concerning the exercise of freedom of expression in the United States, any new legislation created within individual states must finally stand a legal test to the highest venue of case law in the US, the Supreme Court (SCOTUS). Complimentary to the legal and structural or procedural role of the Court such as within a system of governmental checks and balances, then in a civil sense of perspective, the courts might be considered as providing a form of political balance with relation to new works of state legislation and state executive actors.

Albeit, to any individual persons existing within an immediately local context, the checks and balances ideally provided by a well functioning Supreme Court might seem both remote and politically inaccessible. For any individual cases that would have finally reached a hearing of appeal within the judicial venue of the SCOTUS, certainly most cases will have been tried at every level of the US civil court system, up to the hearing by the Court. Considering the time, expenses, and more general demands of the court process at any stage of proceedings or of appeal, the ideal relevance of the Supreme Court might seem overshadowed by a sense of personal doubt about the Court’s role within a democratic society of the United States. Perhaps such a sense of doubt could be ameliorated with a study of the Court’s proceedings.

Focusing about an idea of the Court as a potential source of political balance in the US, perhaps a study may be aided with a reading of a work published by the US Congressional Research Service (Wikipedia), The Constitution of the United States of America: Analysis and Interpretation. The author of this article was able to locate what appears to be a section of a 2014 publication of the study, albeit with limited bibliographical details but available in a PDF format via the federal GovInfo database, S. Doc. 112-9 – First Amendment – Religion and Expression. The printed form of this document amounts to more than 300 pages of well-referenced text, there providing a comprehensive introduction about individual items of case law and of legal interpretations, beginning with the First Amendment to the US Constitution.

After the legal breadth of the study published by the Congressional Research Service, a politically transparent legal organization such as Democracy Docket may help to provide a sense of the Court’s relevance down to the local scale of social contexts. Democracy Docket publishes regular news about court proceedings in federal and state courts, complemented with balanced commentaries and individual articles about topics of civil interest in the US. Quoting the site’s primary page description:

Democracy Docket is the leading progressive media platform dedicated to providing information, opinion and analysis about voting rights and more.

Notably, the site makes use of Web content features that would provide an accessible representation of Web-based content at Democracy Docket, such as in support for screen readers and other assistive technologies. A brief technical introduction to the topic is available from TPGi, in Florida. A more general introduction is available from the Web Accessibility Initiative at the World Wide Web Consortium (W3C).

If this ‘blog article may introduce a resource for reviews about legal concerns within individual states: The US Protest Law Tracker from the International Center for Not-for-Profit Law (ICNL) provides a database about individual state legislative measures impacting freedom of expression and freedom of assembly, throughout the United States. PEN America has published a comprehensive social and legal study of the topic, Arresting Dissent: Legislative Restrictions on the Right to Protest.

Towards an understanding of the social and political meaning of the right to protest, the topic is investigated at depth in a recent book by Temple University Professor Marc Lamont Hill, We Still Here: Pandemic, Policing, Protest, and Possibility. (Review, at Social Justice Books) (also available at Haymarket Books).

If there may have been a sort of legislative trend at a time when individual state legislators may have envisioned a cause to draft new legislation against some specific forms of protest, my own perspective is that there may be lot to investigate in the the sense of privilege that might underlie the drafting of such legislation. Such a form of cultural study might be beyond the scope of this article, albeit.

In a formal sense, albeit somewhat indirectly, any new state legislative measures must firstly stand a test of the vote, at the local level, as well as being directly within the legal purview of the US Supreme Court, at the highest level of Constitutional government in the US.

In addition to the social and political relevance of the vote and the legal relevance of the decisions of the Court, the emergent legislation against protest – and that which may have emerged during the presidency of Donald Trump – these “New Laws” might be considered in light of the works of subject matter experts about civil justice, towards a sense of the relevance of free expression and freedom of assembly for people on the ground.

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