Freedom of assembly and speech at Tillis’ office

This summer, the RCWMS interns have attended weekly Tuesdays With Tillis protests in Raleigh, NC. You can read Savannah Lynn’s post about a “die-in” staged in June by clicking HERE. Below, Colleen Sharp considers issues related to freedom of assembly and speech at Tillis’ office. You can find out about future protests by liking the Tuesdays With Tillis Facebook Page or following them on Twitter, @TillisTuesdays.

by Colleen Sharp

First off, just so I don’t get accused of a crime, I have to be very clear that this is not legal advice. This blog post is intended to be an assemblage of information so you don’t all have to do the same Google searches I did. You could find all of this information on your own, but I am collecting it here as a resource for you.

To give some context: at Tuesdays with Tillis, we have faced increased restrictions on what we are allowed to do and how we are allowed to protest. We are no longer allowed to get past security in the building to meet with staffers and send along letters, we have been asked to take down signs, and we have been met with city police who now use police tape on traffic cones to block off the part of the sidewalk we’re allowed to be on.

While we’re discussing rights under US law, I think it’s important to acknowledge that the ground we are trying to walk on, and the land we are trying to occupy, is stolen from indigenous peoples in North Carolina, and the government does not have a valid claim to control it. That said, it’s important to know what the consequences might be for actions that we choose to take, regardless of the validity of the policies we’re examining. I’m writing this to help Tuesdays with Tillis protesters figure out what part of the restrictions on our weekly protests are constitutional, legal, or at the discretion of law enforcement.

Legal:

Tuesdays with Tillis is legally a picket, meaning that we are conducting an action “primarily promoting or objecting to a policy” in a public, pedestrian/non-vehicular area. Picketing is regulated by Ordinance Section 12-1055 through Section 12-1058 under the City of Raleigh, so please look these sections up to come up with your own interpretations. The requirements of picketing include submitting a notice of intent to picket to the chief of police, and the organizers of Tuesdays with Tillis have been submitting this notice of intent for each week of protest.

Now, for the fun part: the standards of conduct! I’ve learned that I probably should stop going to these protests, because vicious animals are prohibited, and I consider myself to be a very vicious animal. I also should not plan to use my body as a sign, because signs are not allowed to be over 36 inches and because signs are not allowed to have words that would “tend to incite violence” (if you look hard enough you can see that my freckles spell out “punch Nazis” in at least three places).

We are only allowed to be on the outermost half of the sidewalk, not in the street and not in a parking lot (so leave your parking lots at home, folks). We are not allowed obstruct or block the sidewalk, people entering and exiting cars, or the entrance to the building, as I’m sure everyone knows. If someone who really hates health care, justice, or puppies happens to come up to us, and they have already indicated to the police that they want to picket, then the police will make sure that they have their own designated space to picket their cause. However, these puppy-haters are not allowed to physically interfere with our use of the sidewalk or to use language that “would tend to provoke… a breach of the peace.” So, the puppy-haters are neither allowed to blockade us nor to suggest that we set off fireworks in the middle of the street on a Tuesday.

There’s also a section about how everyone needs to disperse if the police tell them to. The interesting part about this section is that the only activity for which the ordinance directly mentions arrest is failing to disperse after harassing an authorized picket, but I suspect that’s not the only activity that could result in arrest at a picket, so I don’t plan to rob a bank while picketing and expect immunity.

Constitutional:

As you probably know, picketing is protected by the first amendment to the US Constitution, and all government entities have to enforce the Constitution. As some of you may know from the country song, “Fightin Words”: “Son, the first amendment protects you from the government/not from me.” The government is not allowed to ever abridge protesters’ rights to gather and speak. Conversely, only the government is required to respect everyone’s right to freedom of speech; I can use my individual power to disrespect the heck out of speech I don’t like.

Now, it’s worth assessing whether the Raleigh ordinance is constitutional: although it’s totally constitutional to assemble, speak, and petition the government, cities can regulate pickets to keep “order,” so I guess we’d better practice lining up our protest ducklings in an orderly fashion. Municipalities are authorized by the Constitution to refuse to allow protesters to block off the sidewalk or prevent access to federal buildings. However, the municipalities’ ordinances cannot leave too much to the discretion of the individual law enforcement officers: so if law enforcement officers are tasked with only keeping “order,” they’re likely to view that as subjectively as we do.

However, these municipalities are not allowed to treat different protests differently based on the content of the speech. So, say, hypothetically, there were a group of our neighbors with silly red baseball hats who had also protested somewhere and did not face similar treatment under similar circumstances: that would likely constitute unconstitutional discrimination. But let’s say, hypothetically,  we wanted to sue for discrimination. We would have to first, find a pot of gold and second, find a comparable example of other groups picketing under the same circumstances who were treated differently.

This has been a very cursory analysis of Supreme Court cases, and I’d recommend checking out Cox v Louisiana, Shuttlesworth v City of Birmingham, Cameron v Johnson, Gooding v Wilson, and all of the footnotes of those cases, if you want to know more. Most of these cases are from the Civil Rights Movement, and a lot has changed since then, but the constitutional interpretations are likely pretty similar.

Officer’s Discretion:

As you can see, a lot of the legal questions that have come up during the Tuesdays with Tillis are precipitated by the actions of the individual officers and staffers at the federal building. The constitutional questions seem to indicate that if too much in the city ordinance is left to the officers’ discretion, and/or if the officers act in a discriminatory manner, then they are acting unconstitutionally. If the officers act in a manner that is not in keeping with the city ordinances, they are acting in an unauthorized manner. I hope that this information helps you to decide whether or not your rights are being violated, and to act confidently however you choose.

Colleen Sharp is a rising senior from Raleigh studying African & African American Studies and Gender, Sexuality & Feminist Studies. She spends her after-class time working on sexual violence victim survivor advocacy and workers’ rights on campus.