Commentary: Inconvenient protests are the price of liberty

By Tabatha Abu El-Haj

As Philadelphia prepares for the coming protests related to the Democratic National Convention - especially those that will proceed without authorization - it is worth remembering that the city has a long history with unpermitted, disruptive, and controversial marches.

On Independence Day in 1795, to take just one example, citizens marched in silence through the city's major thoroughfares protesting the Washington administration's secret Jay Treaty with Great Britain. They carried an effigy of diplomat John Jay, represented as selling American liberty and independence for gold. When they reached Kensington, the participants burned the effigy, confident in their constitutional right to do so.

Processions, public meetings, and protest rarely resemble our idealized conceptions of public discourse - reasoned disquisitions on difficult public policy choices. Yet the founders recognized their importance, especially for those unsatisfied with electoral politics, and included a separate clause in the First Amendment to protect them. Outdoor political gatherings remain a valuable form of political participation even in the digital age. For one thing, they provide a uniquely face-to-face experience of political citizenship. Sustained engagement with politics is often spearheaded by relationships with others, including those forged in political protests.

Like free speech, however, the freedom to assemble needs breathing room. The political power of a march arises from its ability to disrupt. It is the disruption of ordinary routines that makes both the public and the government take notice.

While violent acts fall outside the First Amendment's protection, tolerance of disorder short of violence is essential. Generations of Americans understood that acting illegally is not the same as acting violently, and the constitutional right of assembly protected a good deal of disorder. Permits were not required prior to taking to the streets until the late 19th century. Early American law was also careful to circumscribe the crimes of riot, rout, and unlawful assembly with the requirement of an immediate and serious risk of violence before a lawful assembly, however raucous, lost constitutional protection.

Philadelphia was no exception. The first regulation of street parades in the city was a state statute, passed in 1867, that banned political parades in its streets after dark within 10 days of a general election. The fear was of riots. The following year saw the passage of the first permit requirement for public gatherings, but it applied only to Fairmount Park. The new park rules required any advertised gathering to obtain a permit while prohibiting all political gatherings. In 1873, the city expanded its control over street parades with the passage of an ordinance requiring processions to stop for at least three minutes every 15 minutes to ensure that traffic could pass.

While it is easy to get distracted by the two absolute, if limited, bans on political parades - neither of which would withstand constitutional scrutiny today - the important point is just how much space the law allowed for spontaneous outdoor gatherings. It was not until the early 20th century that Philadelphia required permits for processions in its streets as a matter of routine.

Our current City Council's decision to downgrade low-level crimes such as blocking traffic, failure to disperse, and disorderly conduct such that they would trigger a $100 civil fine rather than arrest is to be applauded as a vindication of this venerable tradition. Mayor Kenney's various statements indicating a commitment to tolerate unpermitted protests of the DNC are also a welcome development.

If he wanted to make the founders proud, however, Kenney would allow activists to remain on the streets so long as the participants do not threaten bodily harm or property damage. He would go beyond the assurance that no demonstrators will be arrested for the sole reason that they do not have a permit.

The mayor, of course, is not the only Philadelphia official capable of making the founders proud. The city's judges could resist the temptation to rely on recent lower-court case law that has readily excluded the nonviolent, illegal actions of protestors from constitutional protection, and instead follow the Supreme Court's admonition, in cases like Cox v. Louisiana (1965), that crimes such as disorderly conduct, breach of the peace, and obstructing public passage must be narrowly construed where constitutionally protected activity is involved. They have the opportunity to draw a bright line for police officers between violence and disorder.

The police can and should arrest individuals engaging in violence against persons and property. Such acts have never been constitutionally protected, and doing so guarantees the safety of fellow citizens exercising their constitutional rights. But decisions to arrest protesters who pose an inconvenience, even if significant, to traffic and business should not be condoned. Inconvenience is the price of liberty.

Tabatha Abu El-Haj is a professor of constitutional law at Drexel University's Thomas R. Kline School of Law. tabatha.abuelhaj@drexel.edu