Revitalizing US Democracy Starts with Repairing the Right to Peaceful Assembly

President elect-Joe Biden has made revitalizing democracy at home and abroad central to plans for his new administration. This is a broad and ambitious vision. One of the most fundamental rights in American democracy is the right to peaceful assembly. Enshrined in the First Amendment of the Constitution, the right of people to come together to have their voices heard has been core to furthering political progress in the United States, from the Revolution to suffrage to civil rights.

Despite the importance of the right to peaceful assembly, authorities’ reaction to this year’s overwhelmingly peaceful protests for racial justice laid bare the failure to adequately protect it. The world watched as federal law enforcement used tear gas to clear peaceful protesters in front of the White House for a photo-op by President Donald Trump; law enforcement in U.S. cities blinded or maimed dozens of peaceful protesters and reporters with rubber bullets and other projectiles; and federal agents used unmarked vehicles to pick up and detain protesters from the streets of Portland. These types of aggressive responses from federal authorities, local law enforcement, and the National Guard undermined the rights of Americans and often made tensions worse, escalating the potential for confrontation and enabling politicized crackdowns on protesters in the name of “law and order.” At the same time, federal and state lawmakers have waged a legal assault on assembly rights, introducing dozens of bills this year that would restrict individuals’ ability to gather and be heard.

Revitalizing U.S. democracy must start with immediate steps to safeguard the right to peaceful assembly. While the management of demonstrations is, and should be, predominantly a local matter, below are five actions the Biden administration can take to better protect this right:

  1. Demilitarize the policing of protests

This year’s protests for racial justice were marked by militarized policing, which can have a chilling effect on peaceful protesters and exacerbate tensions. The National Guard was deployed in over 30 states. Trump reportedly sought to invoke the Insurrection Act and deploy active-duty military troops to respond to protests in U.S. cities. And local law enforcement, frequently equipped with military hardware, often seemed to treat protesters more like combatants than citizens.

As president, Biden should take steps to ensure the military is not inappropriately used on American streets. He should issue an executive order constraining the ability of active-duty military to be involved in policing protests, while also working to pass legislation to reform the Insurrection Act. For example, the CIVIL Act, which was introduced in the House of Representatives in June, would require consultation with Congress before the president could invoke the Insurrection Act to deploy the military and federalized National Guard for domestic purposes, and it would limit such deployments to 14 days without congressional approval.

The federal government should also work to demilitarize the local policing of protests. The 1033 Program allows the Pentagon to transfer military-grade equipment to local law enforcement agencies. After police in Ferguson, Missouri, responded to protesters with donated military hardware, including armored vehicles and sniper rifles, President Barack Obama issued Executive Order 13688, limiting the equipment that could be transferred and improving oversight and transparency of such transfers. Trump reversed Obama’s order in August 2017. Congress has since taken steps to reinstate some of Executive Order 13688’s restrictions, through the 2021 National Defense Authorization Act, but Biden should go further: Given research that shows that Obama’s executive order did not substantially curtail the flood of military weapons transferred to local police, Biden should ban the transfer of a much broader range of weapons, such as tear gas and surveillance equipment, and then work with Congress to end the 1033 program entirely.

  1. Limit federal policing of protests and surveillance

Policing of protests should be undertaken in a community-centered manner and be primarily controlled by local authorities. Instead, the United States has recently seen many dangerous instances of federal overreach.

During this year’s protests, Trump repurposed the Department of Homeland Security (DHS), which was originally created to coordinate the federal government’s anti-terrorism response after 9/11, to target protesters. DHS used heavy-handed tactics including flooding tear gas into crowded streets and deploying SWAT teams at protest sites. A federal court in Portland even had to order federal agents to stop assaulting and intimidating journalists and legal observers. Meanwhile, Attorney General William Barr activated Joint Terrorism Task Forces to investigate and surveil protesters, leading the FBI to interrogate Americans for activities as innocuous as setting up Facebook events for protests. Federal authorities also used facial recognition software to track people suspected of engaging in unlawful conduct at protests.

The Biden administration should launch an investigation into how federal agencies, particularly DHS, were used to police and surveil protesters, and provide both public reporting on and accountability for abuses. Going forward, concerns around the policing of protests should be front and center in any restructuring or dismantling of DHS. As Tom Ridge, who served as DHS’s first secretary, has argued, Trump “perverted the mission of DHS” to use it against Americans who disagreed with the president.

As an immediate step toward increasing accountability, Biden should issue an executive order requiring federal agents involved in crowd control to at least display identifying information, and then work with Congress to make such a change permanent by passing a bill like one proposed by Senator Chris Murphy (D-Conn.) earlier this year.

Similarly, to help address protesters fears about surveillance, Biden should issue an executive order barring federal law enforcement from using facial recognition software to identify protesters. The administration can then push to pass legislation like the Facial Recognition and Biometric Moratorium Act sponsored by Senator Ed Markey (D-Mass.) and others. This bill would bar federal agencies from using facial recognition technology unless explicitly authorized to do so for a specific purpose by an act of Congress. It would also require states and localities to adopt similar bills in order to accept federal funding.

  1. Safeguard against inappropriate prosecutions of protesters and investigate police misconduct

Attorney General Barr called for aggressive prosecution of those involved in racial justice protests that may have violated the law. He even told prosecutors to consider charging those who engaged in violence at protests with sedition. Biden’s attorney general should renounce this guidance and call on federal prosecutors to more appropriately use prosecutorial discretion to ensure First Amendment rights are not chilled.

The Biden administration should also move to reform federal legislation that is used in an overly broad manner to prosecute those involved in protests, particularly the Federal Anti-Riot Act. Earlier this year, the Justice Department charged a St. Louis activist with incitement to riot under the Act, punishable by up to five years in jail, seemingly based on a Facebook post in which he merely encouraged others to join a demonstration that might lead to police arrests. (The charges were eventually dropped.) Recent decisions in the Fourth and Ninth Circuits found portions of the Act, specifically its incitement provisions, unconstitutionally overbroad. Given these decisions and the history of abuse of riot acts, the Biden administration should move to narrow or repeal the Federal Anti-Riot Act.

Finally, the Justice Department should actively investigate police departments that have a pattern or practice of violating protesters’ First Amendment rights. In the past, the Justice Department has entered into consent agreements with local law enforcement agencies, such as in Ferguson and Baltimore, to address police practices that violated the right to peaceful assembly. The Trump administration effectively ended these types of interventions. Given the scale of rights violations witnessed this past year, the Department should move quickly to renew its commitment to these cases, including allocating necessary staffing and resources.

  1. Restrict the use of so-called “less lethal weapons” against protesters

Law enforcement used tear gas or rubber bullets against protesters in dozens of cities this year, severely injuring over 100 individuals, some permanently. Amidst outcry over this frequently excessive use of force, some states and localities have started to restrict the use of these weapons, but there is a pressing need for federal intervention. So-called “less lethal weapons” are an almost entirely unregulated market. Neither the public nor law enforcement know under which conditions rubber bullets do significant physical harm. Nor do they know what chemicals are in gases used on crowds of Americans. Biden should move to pass legislation that would create independent testing and increase transparency around the purchase and use of these weapons, and then ban the most dangerous of these weapons, such as certain kinetic impact projectiles, for use in crowd control.

The federal government should also lay down minimum requirements for the use of these weapons. President Biden has supported national police use of force standards. Any use of force standards that are ultimately adopted should carefully limit the circumstances in which these weapons can be used and require appropriate training.

  1. Create a commission to better protect the right to peaceful assembly 

Finally, the Biden administration should form a commission, preferably with bipartisan membership, to develop recommendations to better safeguard the ability of Americans to come together to have their voices heard. The commission can address the above issues, but also a broad range of related threats to American’s assembly rights, including the recent wave of state and federal efforts to restrict the right; the impact of politicization—and in some cases radicalization—of law enforcement on policing protests; and how to best address concerns about armed protesters. Adopting a more holistic approach, the commission should make recommendations for the federal government, as well as for state and local governments and law enforcement, to better protect the right to peaceful assembly in the United States.

Image: Police officers wearing riot gear push back demonstrators shooting tear gas next to St. John’s Episcopal Church outside of the White House, June 1, 2020 in Washington D.C., during a protest over the death of George Floyd. Photo by Jose Luis Magana / AFP) (Photo by JOSE LUIS MAGANA/AFP via Getty Images

 

About the Author(s)

Elly Page

Legal Advisor at the International Center for Not-for-Profit Law (ICNL)

Nick Robinson

Legal Advisor at the International Center for Not-for-Profit Law, Former Lecturer at Yale Law School and Yale University, Follow him on Twitter (@NLR100).