The contrast is striking: On May 28, Donald Trump demanded the First Amendment right of free speech for himself on privately owned social media, and then, four days later, declared war on the people, gathered on public property, as they sought, in the words of the amendment itself, “to assemble, and to petition the Government for a redress of grievances.”
The right of assembly is an important First Amendment right, one treasured by the founding generation and the First Congress, which wrote the amendment, and one re-won two centuries later at great pain by the labor, civil-rights, and anti-war movements. The show of force that swept peaceful protesters from Lafayette Square in Washington, D.C., last night was an assault—and perhaps only one of a series of assaults—on that right.
During the 18th century, the British crown looked with disfavor on what was then called “the people out of doors”—ordinary people assembled to discuss their grievances, or to ask their rulers to address them. If 12 or more subjects of the king assembled, any royal jack-in-office could “read them the riot act”:
Our sovereign lord the King chargeth and commandeth all persons, being assembled, immediately to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, upon the pains contained in the act made in the first year of King George, for preventing tumults and riotous assemblies. God save the King.
If the crowd did not disperse within an hour, the authorities could disperse them by force. Officials were granted immunity if any of the “rioters” were “killed, maimed or hurt.”
And those arrested could be hanged.
When the new American government was formed, the Second Congress enacted the Militia Act, a more limited law governing “unlawful assembly.” Federal authorities could use force to break up assemblies only if they amounted to “insurrections”—and the act had to be invoked by the president himself, not by his appointees.
The right of assembly had a rough go for the first century and a half of the Constitution. By the end of the 19th century, no less an authority than Oliver Wendell Holmes Jr. (the son of a founder of this magazine, and then a state judge) briskly dismissed the idea of expressive rights on public property. Public property belonged to the government, Holmes said, not to the people at all. “For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private home to forbid it in his house.” The U.S. Supreme Court tersely affirmed Holmes’s opinion. “Peaceful assembly” be damned. The people were not to come “out of doors” without the permission of their rulers.
Only half a century later, in a case about the rights of labor organizers, did Justice Owen Roberts, writing for a plurality, cleanse the law of Holmes’s view of government as the owner and citizens as guests. Roberts wrote:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all . . . but it must not, in the guise of regulation, be abridged or denied.
The people own the streets—not the police, not the military, and not Donald Trump. And regulation of their use of the streets must be conducted with the greatest care, recognizing that occasional inconvenience caused by demonstrations is the price America pays for free government. The fact that some demonstrations are violent cannot be used to strip all Americans of their right to assemble.
That right has been under assault since the day Trump took office. As outlined in a new report by PEN America, red-state legislatures have been indefatigable in debating and passing laws designed to penalize protesters for disfavored causes. The Fifth Circuit Court of Appeals last year approved a grotesque opinion holding that anyone who organizes a protest can be sued—and thus possibly bankrupted—if someone else present commits an illegal act.
Trump has never cared much for these foundational American ideals. Years ago, as a private citizen, he spoke with great admiration of China’s leaders for their 1989 massacre of peaceful protesters in Tiananmen Square: “They were vicious, they were horrible, but they put it down with strength,” Trump told Playboy in 1990. “That shows you the power of strength.”
Trump may fancy that June 1 will be known as his Tiananmen moment, his show of strength. But the American tradition is quite different from the Chinese. The dispersal of the peaceful protesters in Lafayette Square was a monstrous violation of America’s venerable right of assembly, and so are the occasions across the country when police departments respond to peaceful marches with flash-bang grenades, rubber bullets, and tear gas. Some people in the streets have responded with violence—and that is a violation of the law. But when police treat demonstrators as illegitimate intruders in the people’s streets, when they respond to peaceable assembly with weapons of war, they too break the law—America’s fundamental law, the Constitution.