Matthew T. Mangino
August 15, 2020
Are protestors criminals or are they civic-minded members of the community exercising their constitutional right to assemble and advocate?
The president thinks protestors are criminals and he has
said as much. He called Minneapolis protesters “thugs” and has called for his
supporters to “knock the crap out” of demonstrators he opposes. He said, “I
think it’s embarrassing for the country to allow protesters.”
His disdain for protesters has encouraged legislation like
Tennessee’s Driver Immunity Act. Drivers hate to be inconvenienced when
protesters block streets. According to Vera Eidelman and Lee Rowland of the
American Civil Liberties Union, ”[D]riving isn’t a right — it’s a privilege.
Protesting, on the other hand, and specifically protesting in the streets, is a
fundamental constitutional right.”
Apparently inconvenience “trumps” constitutional rights in
Tennessee. In 2017, Tennessee enacted a law which provides that “A person
driving an automobile who is exercising due care and injures another person who
is participating in a protest or demonstration and is blocking traffic in a
public right-of-way is immune from civil liability.”
In Tennessee, you might be able to avoid getting sued for
running over a protester, but a driver who deliberately runs over
anyone—protester or not—could face serious criminal charges.
David Alan Sklansky, a criminal law expert at Stanford Law
School told Reuters “Homicide law is defined state by state, but I think there
is a broad consensus, first that driving a car at a pedestrian can constitute
deadly force, second that the use of deadly force is justified in self-defense
only when a person reasonably believes that it is necessary to use deadly force
in order to protect himself against death or serious bodily injury.”
Feel good “law and order” legislation like Tennessee’s
driver immunity law has encouraged recklessness and lawlessness toward
protesters in Seattle, Portland, Newport Beach and West Hollywood to name a
However, Tennessee continues to pursue protesters with zeal.
This week, the state legislature passed a sweeping proposal that targets
protesters. The bill was passed by a GOP House and Senate and now sits on the
desk of Republican Gov. Bill Lee.
The bill would punish protesters who camp on state
property—as protesters have outside the state Capitol since the killing of
George Floyd—with a Class E felony. Class E felonies are punishable by up to
six years in prison, and such convictions also result in the loss of a person’s
According to the Tennessean, the bill also provides
mandatory minimum sentences for rioting. It would also mandate that those
arrested for charges such as vandalism of public property and other
protest-related offenses be held for at least 12 hours without bond.
“We are using a bazooka to go after a house fly here,” said
Tennessee Senate Minority Leader Jeff Yarbro, a Democrat from Nashville, during
Senate floor debate on the bill. He continued, “Are we really saying that a
citizen of this state can be punished with a year in prison and have a felony
record because they camped on public property?”
Criminal conduct during a protest should not be tolerated
and those who engage in criminality should be prosecuted. The right to protest
is not limitless. The government can impose restrictions on the time, place,
and manner of peaceful assembly, provided they “are justified without reference
to the content of the regulated speech [and] . . . are narrowly tailored to
serve a significant governmental interest.”
However, the First Amendment and Fourteenth Amendment to the
United States Constitution prohibits federal and state governments from
enacting legislation that would abridge the right of people to peaceably
assemble. As far back as 1939, the Supreme Court agreed.
Legislation that seeks to stifle free speech by the threat of harsh penalties for contrived violations of the law serve no legitimate purpose and infringe upon longstanding, fundamental constitutional rights.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.
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