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Policing During Protests: How Cities Can Balance the First and Tenth Amendments

What happens when local police officers clear protestors from a traditional public forum, such as a city sidewalk? What if, in clearing the sidewalk, they also clear a journalist, protected by the First Amendment’s provision for freedom of the press? What if they arrest that journalist? In the battle of First Amendment protections versus Tenth Amendment police powers, which constitutional provisions win?

The answer is not always clear. But, because finding out can mean costly litigation, the better question for local governments might be “what policies should we put into place now to avoid constitutional questions later?”

First Amendment Protections

As most Americans know, and as we have written about before, the First Amendment prohibits Congress from making laws “abridging the freedom of speech, or the press; or the right of the people peaceably to assemble.” Article 1 of the Texas Constitution has similar protections for the “liberty to speak, write or publish . . . opinions on any subject” in Section 8 and “the right, in a peaceable manner, to assemble . . .” in Section 27.

Demonstrations, rallies, and protests, such as those that have taken place across the country in the wake of the recent killing of George Floyd, invoke each of these protections. The verbal nature of speeches, songs, and chants place them squarely under freedom of speech. The Supreme Court has also held that, where it is intended to be expressive and is likely to be recognized as a message, so too can conduct be considered speech. Therefore, actions as simple as wearing black armbands to protest the Vietnam War (Tinker v. Des Moines Independent Community School District) or as divisive as burning an American flag (Texas v. Johnson) have both received First Amendment protection. People coming together for a common purpose is the very definition of assembly. Provided such assembly is peaceful, it is protected as well. These protections are at their strongest in what are known as “traditional public forums,” such as streets, sidewalks, and public parks.

Tenth Amendment Police Power

However, the freedoms guaranteed by the First Amendment are not absolute. On the other end of the Bill of Rights, the Tenth Amendment reserves the powers not given to the federal government “to the States respectively, or to the people.” Those powers reserved to the states include the police power, i.e., a state’s right to establish and enforce laws protecting the public’s health, safety, and general welfare, or to delegate this right to local governments.

Under the police power, local governments may subject otherwise protected speech to reasonable time, place, and manner regulations, provided the regulations are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Additionally, not all speech is protected. For instance, where the speaker has the intent to incite and is likely to incite an imminent unlawful act, the government may restrict that speech. When a governor declares a state of emergency like the one Governor Greg Abbott signed on May 31, 2020, “certifying that threats and incidents of violence constitute and pose an imminent threat of disaster,” the already powerful police power delegated to local governments by the legislature gains even more strength.

Guidelines for Municipal Governments

When governments curb First Amendment rights in the interests of public health, safety, or welfare, courts attempting to determine if the right choices were made under the circumstances will conduct a fact-specific inquiry that weighs the harm and immediacy of unlawful acts against the danger of prohibiting the speech. Context counts, and local police are often the ones called on to make quick decisions in these contexts. Therefore, it is important that local police forces have policies in place that mitigate the likelihood of constitutional claims in the first place.

In an effort to address this challenge, the U.S. Department of Justice published Law Enforcement Best Practices: Lessons Learned from the Field in 2019. That report recommends implementing policies such as community policing, de-escalation, and crisis intervention, and includes best practices and checklists for implementing each of these policies. Likewise, the Texas Police Chiefs Association offers training documents, a sample policy manual, and model policies from a number of Texas municipalities that may serve as a starting point for governments wanting to implement such policies in the State of Texas. As demonstrations, rallies, and protests become more commonplace, it is more important than ever for local governments hoping to avoid constitutional claims to consider these policies, implement them, and make sure their officers are trained to know them well.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

By Randle Law Office attorney Drew Shirley and summer intern Joe Holloway.

Joe Holloway is a summer intern with Randle Law Office. Mr. Holloway is a former journalist and educator pursuing a J.D. from the University of Houston Law Center. He serves as the UHLC Student Director for the Houston Young Lawyers Association, the President of the Space Law Society, Student Bar Association Executive Board Secretary, and Vice-Chair for Public Relations on the Board of Advocates. He received his master’s degree in journalism from the University of Texas at Austin in 2011 and his bachelor’s degree in journalism from Baylor University in 2009.

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