Protest, Free Speech, and the Legal Battle to Protect First Amendment Rights

A pattern has emerged across the United States in the last ten years. The police falsely arrest peaceful protestors to intimidate protestors, to stop others from protesting and to discourage dissent. The police then fabricate a story that peaceful protestors are violent and unruly. 

These arrests violate peoples’ First Amendment right to free speech. Additionally, when the police falsely arrest protestors without legal justification they violate peaceful protestors’ Fourth Amendment rights. These two Amendments and the cases that have interpreted them make it crystal clear: people in the United States have a right to peacefully protest without being falsely arrested by the police. 

In 1965, the United States Supreme Court (USSC) clearly established in the case of Cox v. Louisiana, 85 S. Ct. 453, 379 U.S. 536, (1965) that people have a right to peacefully protest. The Court held that once the police give demonstrators permission to march, they can’t stop and arrest those demonstrators without first giving them an order to disperse. 

The Cox case involved a demonstration of 2,000 African Americans who were protesting racial discrimination in Louisiana. The police originally let them march. Then, without warning, the police revoked permission to march and later arrested Mr. Cox, the march organizer. He was convicted of disturbing the peace. However, the Supreme Court later overturned his conviction. 

When it overturned the conviction, the USSC reaffirmed the right to free speech. The Court recognized that one legitimate purpose of free speech is to create controversy, unrest, and dissatisfaction with present conditions and to stir people to anger. The Court emphasized that this is precisely the purpose of free speech: to shake things up by challenging our prejudices and preconceptions. If we want to live in a democratic, open-minded society, we must protect our right and the right of others to dissent. 

Free speech exists when we are able to protest and raise unpopular ideas without being arrested and prosecuted for so doing. The inherent purpose of demonstrations is to raise criticism of, for example, government or economic policies with which the protestors disagree. The First Amendment exists to ensure that we all have the right to do precisely that. 

Let me give you one more historical example when the Court affirmed people’s right to protest. Demonstrations opposing the war in Viet Nam swept the country in the early 1970s. U.S. Congressman Ronald Dellums was addressing the crowd at one of these demonstration when, without warming, the police arrested the whole crowd, including Congressman Dellums. The arrestees filed a lawsuit to protest the arrests. The Court of Appeals for the District of Columbia reaffirmed that it was well established that people have a right to peacefully demonstrate. The Court held that the police couldn’t arrest peaceful protestors without first telling the protestors they have to leave and giving them an opportunity to do so. 

The law is clear. Everyone in this room and this country has a right to peacefully protest. Yet, police are threatening our right to free speech when they falsely arrest peaceful protestors and then attempt to justify those arrests by fabricating stories about violent and unruly protestors. 

This right is so well established that courts regularly dismiss charges against those who were falsely arrested. In some cases, the falsely arrested protestors then bring civil rights lawsuits in order to vindicate their right to protest, to obtain compensation for the false arrests and to secure a change in police policy so that in the future similar false arrests will no longer occur. These lawsuits have resulted in settlements that compensate the arrestees and affirm the right to free speech without fear of illegal arrest by the police. 

Why do the police continue to falsely arrest peaceful protestors in the face of the successful lawsuits? They do so because the police and the “powers that be” want to stop protestors from doing exactly what the USSC established is our First Amendment right: to dissent, to criticize and to challenge the policies of the government. 

To illustrate exactly what the police are doing and the impact their actions have had on peaceful protestors, I want to discuss in detail the March 20, 2003, anti-war protest in Chicago. 

On March 20, 2003, the day after the U.S. attacked Iraq, the Chicago police penned in and then arrested over 850 peaceful anti-war protestors. I, along with 3 other attorneys, sued the City of Chicago and the police commanders who had arrested the peaceful protestors. The lawsuit alleged that the police falsely arrested the protestors in violation of their First and Fourth amendment rights. For nine years, the police refused to admit they had wrongfully arrested the protestors. In February, on the eve of trial, we settled the case. 

The settlement is a huge victory! It reaffirms people’s right to peacefully protest. One result of the settlement is that the arrestees will get 6.2 million dollars. Another result is that the police have changed their practice when arresting peaceful protestors. The police now approach each protestor and tell him or her that if they don’t leave they will be arrested. The police then give that person an opportunity to leave prior to arrest. This settlement is a resounding victory for the First and Fourth Amendments not only in Chicago but also throughout the country. Attorneys across the country have let us know they cite our case to argue for the rights of protestors to voice dissent without fear of arrest. 

I now want to return to the events on March 20, 2003 and explain what happened that night. I will contrast what really happened with the version of events fabricated by the police. Then I will briefly discuss the long road we traveled to achieve victory in court. I’m going to start with a brief clip from a documentary about the demonstration so that you can see for yourselves what happened. 
Video 1 Clip first 3 minutes of Where We Stood

On March 20, 2003, the day after the US bombed Iraq, 10-15,000 people rallied in downtown Chicago to protest the war. After the rally, a loud, boisterous and peaceful march threaded its way through the downtown and onto Lake Shore Drive, a main thoroughfare in Chicago. At the entry to Lake Shore Drive, police vehicles were positioned to stop vehicles entry onto the Drive in order to facilitate the march's access to the Drive. 

The march exited LSD, planning to return to where it had begun. Without warning or an order to disperse, the police suddenly trapped demonstrators by forming police lines on either end of the march. The police them proceeded to randomly detain and arrest 850 of the protestors. 

Afterwards, the police invented a story of what happened to justify their arrests. They said the demonstrators did not have police permission to march. In fact, the police led the demonstration the entire way, marching in front of, beside and behind the demonstration. The police stopped traffic on city streets so that traffic would not impede the march. The police never told people not to march. This is known because the attorneys obtained a police recording of a police commander calling police headquarters to tell the police to stop traffic on the Drive so that demonstrators could march on it. This same commander was videotaped gesturing to demonstrators to enter onto the Drive.
Video Where We Stood of Risley motioning on protestors

The police transported 500 of the 850 people to police stations. At the police station, the police released about 1/2 of the 500 people because no police officer was willing to take responsibility for the arrests.

The remaining 300 or so people who were detained on the street at the demonstration were released in small groups, if and only if, they went through a police line with their hands up and threw away their signs and buttons. This is a further violation of protestors’ First Amendment rights. 

Video hands up release protestors from the CPD. 
The police falsely claimed they had to stop the demonstration because it had gotten out of control, was violent and the demonstrators refused to leave. Again the facts show otherwise. Let’s look at a police video clip that shows that it was the police who refused to let people leave, not demonstrators who refused to leave. 
Clip of police video w/ people standing around asking to be let go. 

The police attempted to justify their actions by claiming that the protestors were violent. This was not true. The videos show that the demonstration was peaceful. Protestors and even some patrol officers testified that the demonstration was peaceful. 

The police commanders ordered an extensive police investigation of the march because they hoped to establish that the demonstrators were violent and unruly. Ironically, it established the opposite. The thorough investigation failed to uncover violent and unruly behavior. To be totally accurate, it did reveal a few incidents. 
- The police arrested one woman on Lake Shore Drive for chalking on the sidewalk;
- One police car had footprints on it from unknown people walking on it;
- And, a police Lieutenant was hit by a flying skateboard belonging to an unknown person. 
I hope you agree with me that these three incidences fail to establish that the crowd of 10-15,000 was out of control or violent. Indeed, the police investigation confirmed our position that this was a peaceful protest with the exception of one or two minor and isolated incidents. 

I began by stating that one reason the police are falsely arresting people is to intimidate and punish protestors. One clear example of that is how the police treated the people they arrested at the protest. Every protestor was handcuffed, some so severely that they suffered injuries to their wrists. Some officers were unnecessarily rough with the protestors. As you saw in the first clip, the police pushed and shoved the protestors. The police broke the nose of one protester, the arm of another and causing minor injuries to dozens of protestors. This is called excessive force. 

The police confined the protestors in stuffy, overcrowded police transport vehicles for hours, during which time they had no access to food, water or bathroom facilities. 

At the police station, the police fingerprinted and photographed the arrestees, creating a criminal record for the protestors. The police took away the protestors' personal belongings. The police then crammed up to 40 protestors in cells built to hold ten people. Each cell had one open toilet with a fountain attached to it. Most protestors had no access to food or the telephone while at the police station. To add insult to injury, some police officers came to the holding cells to berate the arrestees for being unpatriotic. 

The protestors were held in custody for anywhere from 12-48 hours, which is much longer than necessary. The police in Chicago have the power to release people charged with misdemeanors without the time consuming warrant checks and without requiring that money be posted for release on bond. The police did neither. Despite the fact that most arrestees had never been arrested before, the police checked for outstanding warrants on every single arrestee. During the lawsuit, written records were obtained which revealed that the police command ordered that no arrestee be released until he/she posted $100.00 bond and that all fingerprints must be checked before release.

Concerned and frightened family members and protestors who were not arrested called Chicago attorneys, including me, to alert us to the mass arrests. Attorneys sprang into action to protect the protestors’ rights and to get them out of jail. We went to the police station to make sure the protestors were released as soon as possible. Attorneys from the Chicago chapter of the National Lawyers Guild (NLG) held a mass meeting for arrestees a week after the arrests. The NLG is a national legal organization founded in 1937. We formed to oppose the then racist policy of the ABA, which did not let Black people join its organization. Over the years, the NLG has continued to stand on the side of people who are abused in this society. Our motto is "human rights over profits". We provided free legal representation for any protestor who wanted our services for their criminal case. 

The prosecutors finally dismissed the charges and in doing so, admitted that they were unable to prove that the protestors had done anything wrong. 

Four NLG attorneys, including me, filed a class action lawsuit on behalf of everyone detained and arrested on 3/20/03. We did this to protect the right of people in Chicago to protest without fear of unlawful arrest. 

The main issues we raised were:
Did the police violate the protestors’ First and Fourth Amendment rights when the police penned in and arrested the protestors without first telling the protestors to leave and giving them an opportunity to do so? 

The lawsuit went through a lengthy pre-trial process that lasted until 2008. On the eve of trial, a district court judge found that the arrests were legal. She dismissed our case. She held that there was no legal precedent requiring the police to tell demonstrators who had previously been given police permission to march that the march was over and they needed to leave.

You now know from the Cox and Dellums cases I discussed earlier that she was incorrect. We knew our clients had done nothing wrong. We refused to permit a legal precedent to be established allowing the police to arrest protestors w/out telling them to leave and giving them an opportunity to do so. 

We appealed the Judge’s decision and appeared before the Appellate Court to argue our case. One of the attorneys for the police argued that the demonstrators were unruly as part of their defense. In response, one of the judges referred to the police video you just saw of demonstrators being allowed to leave only after they put their hands up and discarded their signs. She asked, "What do you mean, it looked like a police state?”

In March 2011 the Appellate Court unanimously overturned the District Court decision. A well-known, well-respected, very conservative Appellate Court Judge, Judge Posner wrote the opinion. He relied on the following facts for his decision:

- the police made no objections to the march;
- the police "trapped" the protestors and
- the law is clearly established that the police cannot arrest peaceful protestors for refusing to leave before the police tell them they have to leave. 

Judge Posner further held that even if this law was not clearly established that: and I quote: 
"the Fourth Amendment does not permit the police to say to a person go ahead and march and then, 5 minutes later, having revoked the permission to march without notice to anyone, arrest the person for having marched without police permission." 

The Appellate Court unanimously ruled that the lower court had incorrectly dismissed our case. Finally, almost nine years after the false arrests, the police conceded defeat and settled the case. 

In the beginning of my presentation I told you that what happened in this case parallels other false arrests of peaceful protestors across the country. The police routinely fabricate stories about violent and out of control protestors. Then, in court, judges typically dismiss the criminal cases because no crime was committed. Protestors then file lawsuits that have been settled in protestors’ favor. And taxpayers end up paying the bill for the illegal activity of the police. 

I do not yet have any documents that prove that the arrests are part of a national plan to quell protests. However, these arrests are so frequent and so similar that they cannot be mere coincidence. Let me tell you about a few similar cases across the country. 
- In 2002, DC police penned in and falsely arrested people participating in "anti-globalization demonstrations without probable cause. The case subsequently settled on behalf of the protestors for millions of dollars;
In 2003, Miami police penned in and falsely arrested peaceful protestors demonstrating against the Free Trade of the Americas. The City of Miami settled with 21 wrongfully arrested protestors for 1/2 million dollars in 2007;
- in 2004, the police arrested 1300 peaceful protestors during the Republican National Convention in NYC. There are currently several class actions pending against the police. Schiller v. New York. As of 12/11, the City of New York had spent over 8 million in litigation hours to defend these cases; 
- In September 2009, the police arrested protestors and non-protestors alike during a meeting of the G-20 economic group in Pittsburgh. Many of the students arrested by the police said that despite the fact that they weren't demonstrating, the police corralled and then arrested them. The City of Pittsburgh has settled some of those cases and some are pending. 
- Most recently on October 1, 2011 in New York City, police surrounded and arrested 800 Occupy protestors who were peacefully walking across Brooklyn Bridge. 

The law is clear: these arrests are illegal. Why, then, do the police persist in falsely arresting peaceful protestors? The police arrest peaceful protestors not only to stop them, but to discourage all of us from exercising our right to free speech and to challenge the status quo. 

Protests cause disruption and may challenge the status quo as the USSC has clearly permitted. Those who benefit from the status quo want the status quo to remain unchanged. Protests are often a challenge to those in power. 

Additionally, history makes clear that protests and the movements that often develop from them are major catalysts for change. Our history is filled with social movements that have produced significant changes in society. Think for example of the following significant movements and how they have transformed society:
- the abolitionist movement, which helped to end slavery; 
- the movement for women's suffrage, which resulted in women being able to vote
the civil rights movement, which helped to end legal discrimination based on race in the U.S.;
- the gay and women’s movement which have changed laws and attitudes; 
and now the Occupy movement which has raised issues concerning economic inequality in this country and the extreme wealth, power and privilege of the 1%.

Those who don't want such changes to occur want to prevent protest since they often develop into movements that have the power to create change. One of the best ways of doing that is to arrest those protesting. 

I discussed in detail what happened to the protestors in Chicago after they were arrested. I want to share with you the impact this had on those arrested and others who participated in the demonstration. The arrests were a very traumatic experience for many protestors, particularly those for whom this was their first protest. Additionally, the arrests sent a message to others that if they protested, they too would be subject to arrest. The police actions scared the protestors and others. The impact of the arrests had consequences beyond the time people were locked up. The conditions of the bond prohibited arrestees from leaving the state until their case was over. The arrestees were stuck with a criminal record, unless they won their case and had their criminal records expunged. Many protestors told me that as a result of the arrests on March 20, 2003, they were too scared of the police to protest. I suggest that this is precisely what the police wanted. 

Fear favors those who are happy with and benefit from the current economic and political set up. We cannot let the police silence dissent by falsely arresting those who voice it. This is not right; it is not democratic; and it violates the spirit and the law of the U.S. Constitution! When we protect the rights of others to dissent without fear of false arrest, we protect our right to dissent as well. We help to ensure that democracy survives and thrives. Each of you can contribute to the preservation of our First and Fourth amendment rights by opposing illegal police behavior and by supporting the right to dissent. I urge you to do so.