PERSPECTIVE: Protect assembly and petition by preserving listening at public meetings

First Five by the Freedom Forum Institute

Sep 2, 2021

GENE POLICINSKI

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Two of the least-known freedoms protected by the First Amendment — the rights of assembly and petition — are being tested in today’s rancorous, confrontational social atmospherics.

With confrontation comes vexing problems, for both speakers who fear retaliation from opponents and the government officials who often must preside over meetings that run from contentious to violent.

• At a Salt Lake City area public meeting in May, protesters shouted down a speaker and disrupted the meeting with catcalls and loud insults, forcing the Granite School District board to adjourn.
• In Loudoun County, Virginia, this summer, protests erupted over a proposed school policy of protection for transgender students. The online news operation LoudounNow reported disruption at a June board meeting led to the public being expelled and an arrest for disorderly conduct. At an August meeting, small groups were admitted for comments, requiring some to wait outside in a rainstorm, with no general audience present — a new policy adopted after the June disorder.
• In Anchorage, Alaska, hours of public testimony to a school board about mask policy repeatedly were interrupted by shouting audience members. Alaska Public Media reported that at least one person cursed at the board, with some shouting to board and administrators, “You’re going to jail!”
• Anti-mask demonstrators heckled masked people, including doctors and nurses, leaving a Williamson County, Tennessee, school board meeting Aug. 10. One man was followed to his car and had a person shout at him, “We will find you” and “We know who you are.”

DEMOCRACY REQUIRES ROBUST BUT PEACEABLE DISCUSSION

To be sure, more of us than seen in recent decades are speaking out peacefully, from those opposed to what they see as heavy-handed government enforcement of COVID-19 restrictions to Black Lives Matter supporters calling for police reform.

Passions run high. The words, like the issues, are strong and challenging. But the process of self-governance calls for degrees of patience, tolerance and often — in the final push to a workable policy — compromise. The First Amendment itself provides protection when we “peaceably assemble” and “petition the Government for a redress of grievances.”

No strangers to the hot tempers, provocative speech and outright violence that accompanied political turmoil in their day — think Revolutionary War — the nation’s founders felt compelled to provide protections in the amendment for two contrary ideas: We can speak in tones, terms and words that provide for what the U.S. Supreme Court in 1964 called “robust, uninhibited and wide open” discussion of public issues. But then the founders provided that conceptual counterweight word just before assembly and petition: “peaceably.”

SPEAKING HAS A COROLLARY: LISTENING

While the First Amendment allows no government judgment about the content or viewpoint of what we say, we ought to be worthy of its protections by having something worth saying.

And it follows that if it was worth saying, it’s worth hearing — if only to be better prepared with a counterargument.

Far too often today, that entire thread that supports our core freedoms is lost in the heat of the moment — or in intentional disruption that, no matter how loudly one proclaims patriotism or waves a flag, is just as anti-American as any foreign foe.

We have “robust” public discussions on small and large issues, not just to vent our emotions as a kind of civic therapy, but to parse approaches, proposals and legislation and determine that which best serves the greatest number of our fellow citizens, hopefully in the shortest amount of time.

The “heckler’s veto” and intentionally packing meeting rooms with vocal opposition to intimidate public officeholders are tactics as old as time, but that does not make them valid in a participatory democracy.

WHERE FIRST AMENDMENT PROTECTIONS END

Federal and state courts through the years have held that the public has a right to attend and speak at government meetings — but also have upheld the authority of public officials to set reasonable “time, place and manner” rules to ensure orderly sessions or deal with intentional disruption.

Such rules walk a fine line between protected free speech on matters of public interest and allowing government to carry out its responsibilities. Courts consistently have said government officials cannot restrict speakers because of their viewpoints, however controversial or critical.

“… when you assembly a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. – Benjamin Franklin

But free speech protections do not cover threats of immediate violence — which may well include protesters threatening harm to speakers in the parking lot following a meeting. Even more importantly, such threats have a multiplier effect, likely chilling speech far beyond the specific target. A new survey by the Freedom Forum, to be released Sept. 22, finds significant numbers of our fellow Americans today fear retaliation if they voice their opinions.

Let’s turn to Franklin again: As he was leaving the Constitutional Convention, he reportedly was asked what sort of government the delegates had created. His answer: "A republic, if you can keep it." 

For more than two centuries, we have kept that republic in no small degree because we have freely spoken to each other, secure from government interference or punishment — benefiting from that shared wisdom Franklin noted.

And, just as certainly, we have kept that republic because so many times we also have listened.

Gene Policinski is Freedom Forum’s senior fellow for the First Amendment. You can reach Gene at gpolicinski@freedomforum.org.