54 Years Later: How Much Has Really Changed?

54 years ago today, Irving Feiner learned that his conviction for disorderly conduct would be upheld. In Feiner v. New York, the Supreme Court ruled that potentially hostile crowd reactions to unpopular speech permitted the police to intervene and direct a speaker to stop his public address.  The refusal to stop speaking by Mr. Feiner, who was urging a crowd of onlookers to fight for African American civil rights, resulted in his conviction. Although reinterpreted over the years by subsequent court decisions and commentators, the fact pattern in Feiner v. New York, as reflected in Justice Black’s dissenting opinion, makes plain that an angry mob was able to employ a “hecker’s veto” and cause the arrest and conviction of a speaker simply because they disapproved of his opinions.  In the wake of the recent disputes between protesters and police throughout the nation, the decision in Feiner, 54 years later, continues to be relevant.

Over the last two months, demonstrators have lined the streets, objecting to the Missouri grand jury decision not to indict Ferguson Police Officer Darren Wilson, who fatally shot Michael Brown, an unarmed African American man. Less than two weeks after Officer Wilson avoided prosecution, another white police officer eluded charges when a Staten Island grand jury decided not to indict Daniel Pantaleo, the New York City Police Officer involved in the death of another unarmed African American man, Eric Garner.

While the debate has properly focused on whether the officers acted appropriately and the state of race relations generally, a satellite issue concerning the right to demonstrate has assumed greater significance. Even before the decision not to indict Officer Wilson, the Ferguson Police Department and its apparent policy of detaining peaceful protesters was subjected to a federal injunction. Similar arrests were made during demonstrations in San Francisco, Boston, New York and other cities. And, in each instance in which peaceful demonstrators were detained, the police cited the need to maintain public safety as the reason for the arrests.

Whether, indeed, public safety was threatened by the peaceful demonstrations is an open question. What is clear, however, is that a conflict exists between the exercise of protesters’ First Amendment free speech rights and the effort by police to maintain public safety. This conflict is made even more difficult to resolve under circumstances in which those charged with maintaining public safety are the very subject of the demonstrators’ criticisms.

Plainly, law enforcement officers must be able to protect the public during demonstrations; no one would seriously argue that the First Amendment entitles protesters to endanger others. Nonetheless, the claim that a protest poses a danger to public safety can serve as an convenient pretext to quell unpopular speech – particularly when those responsible for enforcing the law are the subject of the demonstrations. More to the point, when the government is the subject of widespread public criticism and protest, the allegation that demonstrators are posing a danger must be carefully scrutinized. As Justice Black warned in his dissent in Feiner, arresting demonstrators in the name of public safety is “a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police.”

History has taught us that there are no easy answers to these issues. Of course, the exercise of greater restraint by the police and demonstrators would alleviate some of the stresses imposed by the conflicts between the parties. Nonetheless, it is precisely because underlying resentment reached the point of triggering protests in the first instance that tempers tend to flare, leading to undesirable and often frightening outcomes. Since the law does not provide a clear and discernible guideline for resolving the tension between the First Amendment and the need to maintain public safety — since the moment at which public safety is truly threatened is not subject to reliable measure — we are unfortunately constrained to rely upon the protests’ organizers, chiefs of police and our political and civic leaders to act with restraint to ensure that the frequent conflict between free speech and public safety does not result in their mutual extinction.