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Editorial: Peaceable Assembly or Sedition?

On Friday, I drafted an editorial, "George Floyd's Death Shows Need for Change," which mourned the death of George Floyd and called for the judicial application of the Fourteenth Amendment to cases of police brutality. Now, in the wake of days of death, looting, and mayhem perpetrated in cities across the nation, I am impelled to write this followup piece on the parameters for protest, both legal and moral.

After the death of Floyd, people of all races and creeds rightfully turned out and exercised their First Amendment right to protest: "Congress shall make no law respecting ... the right of the people peaceably to assemble." Aside from the occasional hard-hitting sign, most of these demonstrations have not been divisive: From sea to sea, the nation is repulsed by the death of Floyd and this disgust crosses party lines. Some anecdotes make this explicit. In York County, South Carolina, the chairmen of the local Republican and Democratic parties protested together in the ultimate testament to the power of bipartisanship.

Image: the Globe Post

However, some demonstrators have taken a different tack. Instead of encouraging a unified response to a wrongful death, they have embraced the sword as a method for advancing their message. They kickstarted their trail of devastation in Minnesota's Twin Cities, torching a police station and, according to Slate, damaging 170 businesses in St. Paul alone. In one particularly sad case, violent demonstrators destroyed a soon-to-be-opened (but uninsured) sports bar which represented the life savings of its African-American proprietor.

It is important that we separate these actors, who are best described as rioters, from the far more sizable contingent of people identifiable as protesters (a group that includes the aforementioned York County politicos as well as high-school friends of mine).

A simple line of demarcation was proposed by Governor Tim Walz (D., Minnesota), who separated those mourning Floyd from those intent on violence. He said, "Our great cities of Minneapolis and St. Paul are under assault by people who do not share our values, who do not value life and the work that went into this, and are certainly not here to honor George Floyd" (emphasis added). Walz added that 80% of those arrested are out-of-staters.

Sadly, the riots that commenced in Minneapolis and St. Paul have enveloped the entire nation. An article from the Wall Street Journal, entitled "Cities Racked by Another Night of Violent Protests," provides a sampling of the tactics used by those neither value life nor intend to honor George Floyd (as Walz put it):

  • "Protesters lighted cars on fire in New York, Seattle and Philadelphia. In Los Angeles, demonstrators kicked in the windshields of police cars, torched a police outpost in an outdoor shopping mall, and looted Nordstrom and Ray Ban stores."
  • "In Indianapolis, police said they are investigating multiple shootings that occurred downtown during protests Saturday. Police tweeted that no officers were involved. One person was killed, the Associated Press reported."
  • "In New York, ... 47 police vehicles were vandalized in Saturday’s demonstrations, including a number of vehicles that were set on fire, and 33 NYPD officers were injured."
  • "In Oakland, Calif., a contract security officer for the Department of Homeland Security was killed and another was injured after a person inside a vehicle shot at them around 9:45 p.m. Friday, according to the FBI."
  • "Violent crowds swarmed Minneapolis and St. Paul, lighting fires and shooting at law-enforcement officers, police said, in an escalation that prompted state and city officials to request more help from the National Guard..."

This chaos is why the most essential word of the freedom-to-assemble clause of the First Amendment is peaceably. The Framers did not grant mobs the power to perpetrate sedition under the auspices of grievance, and while this may seem like an affront against those seeking justice, it is clearly to the advantage of all involved. When protesters perpetrate violence, it drowns out their message and induces polarization; infringes upon the life, liberty, and property of others; and destabilizes the republic, if only temporarily.

Some have attempted to justify the riots. Their argument is two-tiered: (1) the police tactics in mitigating the protests motivated riots and (2) the riots are the result of longstanding grievances among the black community. A corollary to the second line of reasoning is that the riots should be accepted as a call for help, not as a cause for prosecution.

The first argument can be dispelled with nothing more than news reports. On Tuesday, the first day of violence, the protests were peaceful until a "much smaller group than the initial protest started vandalizing the building, shattering a window and spray painting squad cars," reports the local CBS affiliate. Incidentally, this validates my thesis that the protesters and the rioters are not one in the same. The police, arriving in riot gear, responded to this destruction of property by "firing tear gas and flash grenades as protesters hurled rocks, water bottles and anything they could get their hands on towards the officers."

The same scenario (i.e., rioters engaging in property destruction, the police responding, and the demonstrators engaging in increasing levels of violence), has unfolded again and again, allowing people to disingenuously assert that the police is culpable for the widespread lawlessness engulfing the republic.

Later in the week in Minneapolis, when police attempted to enforce the curfew established by the governor, "the gathering, which had remained largely peaceful to that point, grew violent," notes the Journal. The report continues, "Police shot rubber bullets and tear gas at the crowd. Protesters fired back with purple smoke bombs."

In Philadelphia, "13 police officers were injured during Saturday's protests," and "at least nine fires were set to vehicles and other structures." The mayhem started not at the hands of police, but instead because of violent demonstrators. The city's PBS affiliate reports,

At 5:30 [PM], the Philadelphia Police Department tweeted that criminal acts and vandalism would not be tolerated and Mayor Jim Kenney asked protesters to go home. ... They did not. A crowd remained gathered near City Hall as car fires continued to burn. Businesses in the area were vandalized or broken into. The Starbucks kiosk at Dilworth Park was also set on fire.

In response, not preemptively, "[p]olice officers sprayed protesters from inside a SWAT van, and were pelted with orange traffic cones and bottles in return."

The violent streets of 2020 are not Kent State, where anti-Vietnam War protesters were fired upon; they are akin to Fort Sumter, where the government was the victim of preemptive attack. (At Fort Sumter, the Confederacy initiated fire against a Union formation and claimed that they were the ones defending the homeland from aggression.) It is not lost on me that in 1861 South Carolina and on the city streets of 2020 alike, seditious actors profess the culpability of the government when they are the ones actually initiating violence.

Now that we have established the riots as the doing of violent actors and not a response to police aggression, it is important to consider their predicate.

Some argue that they are the consequence of systemic oppression against blacks, and this line of reasoning was advanced most concisely by Black Lives Matter activist Michael McDowell. He said, "There are folks reacting to a violent system. ... You can replace property, you can replace businesses, you can replace material things, but you can't replace a life."

As I noted in the editorial I posted on Friday, "I have ... never walked a day in the shoes of communities who feel -- with merit, if Floyd’s death teaches us anything -- that law enforcement is not serving their lives, liberty, and property, but instead hindering their flourishing." I do not dispute the stated predicate for the protesters' anger; I am inclined to support them because I have never experienced the struggles of the black community.

What I will dispute, however, are the contentions that "[y]ou can replace property" and that riots are justifiable. The sports bar mentioned earlier is a clear argument against the first postulation: Property is life-sustaining. Without it, humans cannot survive except through charity, an existence desired by few.

The second leg of McDowell's argument -- that riots are justified by people's anger against "a violent system" -- is tougher to unpack and would require an analysis of reams of data on policing. That is not an undertaking I am willing to complete. I will simply note that a demonstration which infringes upon the lives, liberty, or property of others, including the freedoms of people within the affected community (African-Americans), is illegitimate regardless of intentions. Such demonstrations (i.e., riots) implicitly lay a claim on others, and that is wrong.

It is also important to note that "white supremacists could be responsible for some of the looting, arson and vandalism that has rocked the Twin Cities in recent days," according to Minnesota public-safety officials. This shows the disingenuousness of attaching a blanket rationale for rioting, as McDowell did, as the sword appears to be the tool of people with a multitude of intentions. Some rioters have legitimate grievances and are just using illegitimate ends, but others -- e.g., the white supremacists -- are distorting Floyd's memory and using it as license for creating mayhem.

***

U.S. Attorney General William Barr, arguing that "the violence is planned, organized, and driven by far left extremist groups and anarchic groups using Antifa-like tactics," threatened to enforce the 1968 Anti-Riot Act. Former federal prosecutor Andrew McCarthy, a prominent conservative legal voice, suggests charges based on Civil-War era statutes against "seditious conspiracy," in addition to racketeering laws.

Both Barr and McCarthy predicate their argument upon the fact that 80% of the Minneapolis protesters crossed state lines, making the violence a federal issue.

In the coming weeks and months, the justice system will be charged with drawing the legal line between peaceful demonstrations in support of Floyd, which are imaginably supported by a wide majority of the population (myself included), and violent riots which have been coopted by violent actors and are destroying American metropolises. This will inspire new jurisprudence on the extent of the First Amendment.

My greatest hope is that, as we wait for the courts to "do their magic," people on both sides of the aisle will help make the distinction between peaceable assembly and rioting (i.e., the destruction of life, liberty, and property under political pretenses). Blurring this line is a disservice to the memory of George Floyd and a gift to perpetrators of mayhem.

All unsigned FDL Review content is the product of Declan M. Hurley.

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