How First and Second Amendments Apply in Protests

Recent political protests and associated gun violence in Wisconsin have put a spotlight on vigilantism and the rights of Americans under the Constitution to both peaceably protest and bear arms freely.

These topics, inextricably linked these days, were the focus of a Tuesday discussion by two Duke law scholars who took part in a virtual media briefing with journalists.

Watch the briefing on YouTube.

Here are excerpts:

ON GOVERNMENT POWER UNDER THE FIRST AMENDMENT

Nicole Ligon, First Amendment expert

“The government has the authority to make and enforce rules for public health, safety, welfare such as the shutdown orders earlier this year. At the same time, the First Amendment protects people’s rights to free speech and to peaceably assemble. But very few constitutional rights are absolute.”

“The government is able to regulate the time, place and manner of speech in public forums … as long as the restriction is narrowly focused to serve a significant government interest.”

ON RECENT PERVASIVE VIGILANTISM

Darrell Miller, law professor

“We as a sort of society have somehow drifted to a position where persons can cross state boundaries, sometimes heavily armed, appear on the streets again heavily armed, and there’s very little that can happen beforehand in terms of an ability to stop it, with sometimes violent and calamitous results.”

“We don’t have hard statistical data on this, but it should be noted that this is quite in contrast to absolutely innocuous events that turn out very, very badly with the deaths of young black men in America. Tamir Rice in Cleveland wasn’t even a teenager, he was a young boy out on a playground playing with a toy gun. The police rode up and shot him dead.”

“It seems like there’s two trigger fingers. There’s the trigger finger for African-Americans with guns and there’s the trigger finger for whites with guns.”

ON INTERPRETING THE SECOND AMENDMENT

Darrell Miller

“We’re operating in an environment in which the constitutional law is still not very clear as a matter of judicial rulings. Lots of people are making claims about what the Second Amendment does or does not permit in a highly tense environment.”

“It’s always important to remember the Second Amendment is a floor, not a ceiling. It does not say whether a state, for example, can allow more guns in more places. That becomes a policy matter. There are tradeoffs. If you have lots of people in a highly charged political environment, armed, it makes the ordinary, peaceful process of politics much more difficult.”

ON IMPOSING CURFEW ORDERS UNEQUALLY

Nicole Ligon

“To the extent that curfew orders are being differentially enforced based on viewpoint, that is viewpoint discrimination. That is not going to be permitted by the First Amendment.”

“You’re not going to be able to differentially apply a curfew order to someone based on viewpoint. You’re not going to be able to say Black Lives Matter protesters can’t be out past a certain time, but pro-police protester can.”

ON USE OF LEGAL OBSERVERS DURING PROTESTS

Nicole Ligon

“Legal observers are not unique to the US. They exist all over the world and frequently document police interactions with citizens. They serve a check function. The idea is that …  if they are there, maybe then there will be less biased reactions, there will be more clean arrests.”

“We have so many examples of important protests that have happened. Legal observers help to insure that protests occur in a safer way but also that everything is being documented and reported.”

“They act as these neutral third-party observers. There’s a really important role they serve for the commission of justice.”

“These are really critical roles, and they’re good for everyone.”

ARE THE FIRST AND SECOND AMENDMENTS INCOMPATIBLE WITH EACH OTHER?

Darrell Miller

“I think there is at least a challenge with trying to reconcile these two things. The right in the Second Amendment is a right to keep and bear arms so people who think you have a right to have guns anywhere you happen to be, focus on the ‘bear’ part. The right in the First Amendment is the right to peaceably assemble. You have the right to assemble in a way that does not disturb the peace.”

“The fundamental challenge is trying to square these two things where to some … people, the mere presence of lethal weaponry in private hands at a protest terrifies and therefore is a potential challenge to the peace.”

“In a densely populated urban area where people are showing up with firearms, the norms and behaviors and expectations and the perceptions of what is happening are going to be totally different.”

“Do you fear going to a place to register your political views if you think there are going to be armed private individuals there?”

Nicole Ligon

“It’s very likely that there is some element of chilling that will occur if you have protesters that are going to be met with counter-protesters who are bearing arms, brandishing weapons.”

“The question is not so much that these people have weapons, it’s why do they have them. Is it necessary to their speech for a counter-protester to be holding that weapon?”

“There is this element of chilling that could definitely occur. That’s something that really needs to be examined and looked at.”

ON WHAT PRIVATE MILITIAS ARE ALLOWED TO DO IN PUBLIC

Darrell Miller

“It really depends on what state you’re in. Some states have a long track record of actually forbidding this kind of activity. For example, the state of Washington in the early part of the 20th century outlawed private organizations of armed men in part because what had happened was big moneyed interests were using private military to engage in labor suppression.”

“The bigger challenge here is that in some ways, a combination of beliefs about the Second Amendment and what it stands for, fairly generous laws about open carry and Stand Your Ground, and self-defense, and the low, low barriers to coordinating lots and lots of people through social media … has made it plausible to have many, many armed individuals show up in the public square and not really be members of a private militia as much as a group of individuals with firearms that show up. It has the same, potentially pernicious effect in terms of risk of injury and risk of confrontation.”

“We have to understand that the tolerance or the norm of having your political position in the public square supported by arms is not something we think of in a well-ordered society. This is something you see in other countries that have fragile democracies.”

ON WHAT CAN BE DONE TO IMPROVE THE SITUATION RIGHT NOW

Nicole Ligon

“A greater appreciation for viewpoint diversity. These protests again are so incredibly personal, but I do wish as a society we weren’t so quick to say, ‘I know what that protest is about and I don’t support those people.’ ”

“I think we’re doing a lot of blending of things we don’t like and we’re conflating them with messages we decide offhand we don’t agree with.”

“It has been really disappointing to see how some people talk about these Black Lives Matter protests. I really wish we did a better job of understanding why are these viewpoints necessary to be heard, where people are coming from and being able to differentiate who is really involved in a moment and who is opportunistically engaging in something that is completely separate.”

Darrell Miller

“Martin Luther King Jr. and the Student Nonviolent Coordinating Committee in its early years recognized violence in the public square, or threats of violence, has the damaging feature of undermining the message you’re trying to send. If you’re trying to send a message that police brutality is unacceptable, it undermines your message to engage in violence or threat of violence.”

“If you’re concerned that the reopen (movement) is not happening fast enough, it feels like it undermines your moral position to not engage with others as equal citizens but to threaten violence in order to persuade others about your political position.”

Faculty Participants

Nicole Ligon
Nicole Ligon is a lecturing fellow and the supervising attorney of the First Amendment Clinic at Duke Law School, where she teaches First Amendment law. Before coming to Duke, she litigated First Amendment issues in private practice.

Darrell Miller
Darrell Miller is a law professor who specializes in civil rights, constitutional law, civil procedure and state and local government law at Duke University. He also co-directs the Center for Firearms Law at Duke Law School. His scholarship on the Second Amendment has been cited by the U.S. Supreme Court.
 

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