Unlawful Assembly and The Limits of Free speech

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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.

Letter to the Editor- Coast to Coast Riots

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Published by Pinal Central.
Dear Editor,

 

As the old saying goes two wrongs do not make a right. Nothing excuses the atrocity committed against George Floyd. However, this reprehensible action does not reflect law enforcement as a whole.  This as with all instances of police brutality is a shameful outlier. The situation should be handled with justice served through proper legal recourse.

 

The folks who are frustrated by these occurrences do have a right to express their opinion. The First Amendment of the United States Constitution protects the right to peaceful protest.  What the various protests across the county have devolved into is undefendable. Looting, vandalism, violence, and other varieties of wanton chaos. Most of these reactions are  fueled by visceral outrage. Such reactions are not responsible nor constructive avenues for enacting change.  Destructive actions can only make a bad situation worse. No amount of unfocused retaliation will bring about reform or justice for Mr. Floyd. It will only hurt more people.

 

Continuing this cycle of violence and destruction helps no one. I would urge all demonstrators to emulate the peaceful protests of Dr. Martin Luther King Jr. and Gandhi. Two of history’s most influential protesters never restored to violence. They both lead the way to genuine reform without compromising on civility . Measured and nonviolent communication carries more weight than reactionary rage.  Both Gandhi and Dr. King were living proof.