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My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time. And anyone who disagrees with this can pick a number, get in line, and kiss my ass.”
― Christopher Hitchens

 

There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
― James Madison

 

 

There is a fine line separating protected speech from destructive behavior. Many onlookers have questioned the efficacy of peaceful demonstration (see comment below the article).  After all,  in the tragic death of George Floyd, the government has violated its contract to the people. In a Lockean sense, we exchange unfettered freedom for state protection of our rights. This theoretically voluntary arrangement is undermined when state power takes primacy over contractual  fulfillment. Outrage is certainly warranted. Especially when those who have sworn to protect this social contract are the ones benefiting from the institutional loopholes. However, what is the appropriate course of action?

 

Qualified Immunity has protected scrupulous police officers from being accountable for their transgressions.  Putting into question whether America still holds its founding ethos of Classical Liberalism in high-esteem.  If public officials can violate our rights with little to no repercussions, our experiment has failed.  Giving credence to all of the subterfuge and rent-seeking behavior that distinguishes Public Choice Theory.  We as a society pay the cost for the few that benefit from this privileged legal status. We pay for it through the sacrifice of our civil liberties. Demonstrating the concept of “concentrated benefits and dispersed costs“.  In some instances, we require protection from our designated protectors. Creating an atmosphere of pessimism and incredulity. Amounting skepticism of justice and equality under the law in the United States. Leading the most disenfranchised Americans to resort to violent demonstrations. If the microphone or the pen does not convey your point, maybe the sword will.

 

That is not to say that all of the protests in reaction to the murder of George Floyd have been violent. I applaud my own community of Maricopa, Arizona for keeping demonstrations civil. Unfortunately, that can’t be said for every community.  Every community should keep their conduct civil. Despite the violence perpetrated by state actors. Why?  Because looting and wanton vandalism is not a vocalization of injustice. Its a deterioration of civilization. It is an erosion of the informal norms and values that keep our passions in order. It merely victimizes innocent parties. The business owner that had their store looted did not participate explicitly or implicitly in killing Mr. Floyd. How is this action even remotely connected to the issue at hand? Or even justifiable?  It isn’t. Sure, there are probably proverbial “bootleggers” hiding under the moral guise of demonstrating against police brutality. Creating the perfect pretext for taking advantage of the situation.  There are those on the side of the “baptists” who believe the use of force is justifiable, even when directed at uninvolved third-parties.

 

Destroying private property in protest is not justifiable. If anything it mirrors the same folly of police brutality. Both are property rights violations. Hence, why crimes against person and property are often parceled together. This is far from a novel concept in Libertarian thought. Many proponents of a natural rights approach have already made this observation. We as autonomous actors are owners of ourselves. In turn, we own our bodies. As slavery has long since been abolished. An adult of normal intellectual capacity possess self-ownership. Meaning they can choose what they ingest, read, listen, and so on. Involuntary and undue harm induced by injurious actions taken by a second actor is a clear property rights violation. While more of a peripheral violation, the destruction of a storefront is nevertheless a similar transgression. In other action, you are depriving the elementary freedoms of the individual. However, the property rights pertaining to “self-ownership” takes primacy.

 

Putting aside these abstract philosophical tenets, violent protest is not justifiable under current law.  The First Amendment of the  U.S. Constitution is not absolute and does have a number of notable exceptions.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

For instance, the use of  “fighting words” is not protected speech under the First amendment.  This legal term was defined in the case Chaplinski V. New Hampshire, 315 U.S. 568 (1942).  This excludes words mean to incite violence or other forms of unrest. The Arizona chapter of the ACLU has a running list of varieties of prohibited speech. There are a number of well-defined restrictions when it comes to protesting demonstrations.  Which includes civil disobedience, any dangerous actions, obstructing roadways without a permit, harassment, or interference with private property.  Violation of any detailed criterion will make the demonstration an unlawful assembly.

The statues explicitly pertaining to unlawful assembly and riots in Arizona state law include the following.

ARS 13-2902:

A. A person commits unlawful assembly by:

1. Assembling with two or more other persons with the intent to engage in conduct constituting a riot as defined in section 13-2903; or

2. Being present at an assembly of two or more other persons who are engaged in or who have the readily apparent intent to engage in conduct constituting a riot as defined in section 13-2903 and knowingly remaining there and refusing to obey an official order to disperse.

B. Unlawful assembly is a class 1 misdemeanor.

 

ARS 13-2903:

A. A person commits riot if, with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which disturbs the public peace.

B. Riot is a class 5 felony.

 

Both laws are quite clear on the defining parameters of acceptable forms of protest. Neither statue condones the destruction of private property. Individuals who were not involved in incidents of police brutality should not be punished by the fallout of violent demonstrations. I should note that not all of the protests have been violent. I fully acknowledge this point. Any instance of violent protests is unacceptable. Mirroring the fact that police officers using excessive force to subdue a suspect is never permissible. Either action violates the natural rights of the victim. The Non-Aggression Principle asserts that we should not inflict undue harm on others any such action is inherently transgressive. However, this philosophical tenant does not apply to self-defense. The only circumstances under which violent actions are ethical is in self-defense or defense of your property. Under any other contingency, you are the one at fault.

 

Please note that I am equally repulsed by the abuse of police power as I am by the violent protests.  I would surmise are not as prevalent as the media portrays.

 

There are also examples of police officers assaulting peaceful protestors.

6 thoughts on “Unlawful Assembly and The Limits of Free speech

  1. Excellent post. For my part, I see harm as a “reciprocal problem” — for example, to say “do no harm” or “your right to swing your fist ends where my nose begins” is unhelpful. Why? Because if A is attacking B, then B has a perfect right to hit A’s nose in self-defense! The problem today is that the police are now above the law. If you punch me in the face, I can sue you in tort, but if you are wearing a badge, you have “qualified immunity” … If thay type of rent-seeking were abolished, the police would be more careful in their dealings with suspects.

    Liked by 1 person

    1. I certainly can’t disagree with your points. The more I dig into QI , the worse the narrative becomes ( at least from the standpoint of my narrow understanding of it).

      Beyond just the human element of such abuses, it is a clear extension of state power. As code enforcement agents they represent the state.( IMHO). I am in the precarious situation of having a younger brother in law enforcement.

      Last time we had a argument we had a general dispute about labor unions. Nevermind QI. He’s a good natured guy. But not necessarily a topic I want to debate with him.

      Liked by 1 person

      1. I totally get your situation, as I many of my students and TAs have close relatives in law enforcement. Based on my conversations with them, they are certainly willing to concede the existence of the proverbial few “bad apples” on police, but I am with you on this one: it is the incentive structure that really matters, and QI distorts these incentives in a one-sided fashion! Here is where I like to bring our common law tradition to bear. Instead of alleging the violation of constitutional rights, which triggers QI, what if victims of police abuse were allowed to sue government agents in tort (e.g. for battery or wrongful death, as the case may be)?

        Liked by 1 person

        1. That would be a easier criteria to uphold. From what I have heard from several commentators if you can’t prove past case precedence you are screwed. The victim’s rights violation needs to match the precisely with a past example. Creating a pernicious loophole. If the officer varies their actions in any way from a previous case they are off the hook. ( If my understanding is correct). Even if they did indeed break the law!

          Liked by 1 person

        2. Indeed! Going back to one of my previous comments, I really see federal judges as the “bad guys” here, since (as I see it) they are using QI to clear their dockets by preventing plaintiffs from having their proverbial day in court. Of course, because of stare decisis (vertical precedent), one could argue that my blame is misplaced, that I should focus on SCOTUS instead, for allowing this situation to happen. Either way, perhaps Congress will step in to improve the situation. I understand that Representative Amash has introduced a bill in the House to end QI.

          Liked by 1 person

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