Members Only | May 13, 2022 | Reading Time: 4 minutes

History loves a good protest

Senators and justices alleging violence should rethink their allegations.

Screenshot 2022-05-12 5.16.14 PM

Share this article

The right to peaceably assemble and protest is dearly held in the American imagination dating back to the Boston Tea Party. 

While the response to peaceful protests by non-white people and women was not always embraced at the time, the narratives of suffrage parades and Civil Rights marches have been embraced in American history as the “right” way to protest free of violence or incitement. 

Despite the near universal praise for peaceful protests of the past, when activists take these historical lessons to heart and protest current injustices, those in power must be reminded anew each time that peaceful protest is vital to American history and a thriving democracy. 

The real history of protesting in the United States is that those in power are always threatened and seek to find ways to suppress protests, but the public imagination forgets those actions and fondly remembers successful protests as deeply American. Senators and justices concerned with their legacy might want to reread how much our history books love a good protest.

And so we are once again left to educate Supreme Court justices and senators on the Bill of Rights and assure them that people holding signs outside their homes are not a threat, but simply exercising one of our most treasured freedoms – the freedom to tell a powerful person they’ve royally screwed up.

This past week protests erupted outside Justices Kavanaugh, Roberts and Alito’s homes to protest the likely overturning of Roe v. Wade after Justice Alito’s draft opinion was leaked for Dobbs v. Jackson Women’s Health

The protests outside the justices homes, and the terrifying sidewalk chalk incident outside of Senator Collins’ home, have been peaceful. Yet many are clutching their pearls at the idea that someone could face protests at their private home. 

It’s not clear why these protests are so offensive to people or why the private home of people questioning a constitutional right to privacy should be off limits. 

Some have claimed these protests aren’t fair to their neighbors but the protests in front of Justice Kavanaugh’s home were organized by a neighbor and protestors felt pretty supported by Justice Alito’s neighbors with some even offering wine and cheese to a reporter covering them. 

When asked about these protests, Senator Schumer shrugged them off and said such peaceful protests are “the American way.” He would know since he faces protests at his home in Brooklyn multiple times a week (without calling the police as far as I know).

The right of “freedom of assembly” is held in the First Amendment of the Bill of Rights, which protects freedom of speech and the right to peaceably assemble and petition the government for a redress of grievances. 

The Supreme Court has also repeatedly protected this right in the face of government intrusion. 

In De Jong v. Oregon in 1937, the Supreme Court said the state could not interfere in De Jong’s right to organize a protest against police brutality. This case was particularly important in that it emphasized a difference between “advocacy” and “incitement” in that advocacy for communist ideas did not necessarily incite violence to overthrow the government. 

It struck down Oregon’s “criminal syndicalism” law, which outlawed which prohibited advocacy of “any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” 

In Edwards v. South Carolina in 1963, the Supreme Court overturned the convictions of students for supposedly “disturbing the peace” when they were protesting segregation. The majority opinion wrote that the students were exercising their First Amendment rights in the “most pristine form.” 

Freedom of assembly clearly has limits with one built right into the language of the First Amendment in that the assembly must be “peaceable.” 

Violent action, like speech that incites violence, is not protected. 

While this is a reasonable limit, it also provides an unfortunate method of delegitimizing protest – those in power can claim protests are inciting violence or lawlessness. 

In Justice Clark’s lone dissent in Edwards v. South Carolina, he employed the threat of violence to justify the police’s actions in arresting the peaceful protestors. Clark claimed the protestors were not engaging in a “passive demonstration” and that the police were preventing a possible riot.

The fear of possible violence supported laws passed after the Nat Turner rebellion in 1831 to prohibit the assembly of free Black people all over the south. 

The majority of these assemblies were peaceful and often devoted to schooling or religious worship. But the threat of another rebellion was enough to justify outlawing this basic constitutionally protected freedom. Theodore Dwight Weld said these laws were indicative of “‘the right of peaceably assembling’ violently wrested” in 1836. 

At the same time in the north, abolitionists, including free Black people and white women, were taking advantage of this constitutional right to hold meetings, conventions and give speeches. 

While these abolitionist tactics set the stage for the suffrage movement and the Civil Rights movement, many at the time criticized an assembly of a mixed gender and interracial group. 

The behavior of the abolitionists were criticized while mobs disrupted their meetings and speeches. At an 1835 meeting of the Boston Female Anti-Slavery Society, the mayor burst in with his constables to demand the women go home rather than control the mob of people disrupting the meeting. 

Racial justice protests in recent years have been delegitimized with claims of violence and looting even though data shows that 93 percent of such protests were completely peaceful.

While there have been no reports of violence as a result of abortion protests this week, even though Susan Collins called the police about sidewalk chalk, the Senate has still decided to pass a bill to increase security for Supreme Court justices. 

While not a big deal on its face (who cares if they have security), the need for the bill implies a threat of violence that there is no evidence for. 

Once again completely peaceful protests are being maligned with the mere possibility of future violence which would delegitimize their constitutional protection. 

The governors of Maryland and Virginia are trying to stop the protests by demanding that the Department of Justice enforce a federal law that prohibits demonstrations intended to influence judges on decisions. 

This is a particularly obnoxious attempt to stop the protests considering justices are clearly influenced by politics and conservative justices regularly give speeches at political gatherings. Clarence Thomas won’t even recuse himself from January 6 cases despite his wife’s involvement. 

It’s ridiculous to think any of these justices would be swayed by public opinion and enforcing this law to stop the current protests could set a dangerous precedent that limits constitutional rights if protesting anything related to a Supreme Court case.

The real history of protesting in the United States is that those in power are always threatened and seek to find ways to suppress protests, but the public imagination forgets those actions and fondly remembers successful protests as deeply American. Senators and justices concerned with their legacy might want to reread how much our history books love a good protest.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

Leave a Comment

Want to comment on this post?
Click here to upgrade to a premium membership.