26 September, 2020

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Controlling The Right To Freedom Of Assembly In A democracy

By R.M.B Senanayake

R.M.B. Senanayake

R.M.B. Senanayake

A news item in the Daily Mirror refers to a Fundamental Rights petition against rallies and street protests filed by an aggrieved father. The petition wants the authorities to come up with a mechanism to avoid illegal and unlawful protests and to streamline them to be compatible with the existing laws, rules and regulations.

My mind went to the First Amendment to the U.S Constitution. The First Amendment of the United States Constitution specifically allows peaceful demonstrations and the freedom of assembly as part of a measure to facilitate the redress of such grievances. “Amendment I: Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

A demonstration or street protest is action by a mass group or collection of groups of people in favor of a political or other cause; it normally consists of walking in a mass march formation and either beginning with or meeting at a designated endpoint, or rally, to hear speakers. Wikipedia says

“Actions such as blockades and sit-ins may also be referred to as demonstrations. Demonstrations can be nonviolent or violent (usually referred to by participants as “militant”), or can begin as nonviolent and turn violent dependent on circumstances. Sometimes riot police or other forms of law enforcement become involved. In some cases this may be in order to try to prevent the protest from taking place at all. In other cases it may be to prevent clashes between rival groups, or to prevent a demonstration from spreading and turning into a riot”

They may involve some physical actions–marching, chanting slogans, and singing — through which the merger of the individual in the mass, which is the essence of the collective experience, finds expression.’

Demonstrations can be used to show a viewpoint (either positive or negative) regarding a public issue, especially relating to a perceived grievance or social. A demonstration is usually considered more successful if more people participate. Topics of demonstrations often deal with political, economic, and social issues.

Protest marches and demonstrations are a common nonviolent tactic. They are thus one tactic available to proponents of strategic nonviolence and governmental authorities should look upon them in that light.

Some demonstrations and protests can turn, at least partially, into riots or mob violence against objects such as vehicles and businesses, as used to happen in the heydays of the Leftists demonstrations on May Day. Fortunately they don’t happen any more. Problems arise when the Police erect barricades to prevent the march of the protesters when they may resort to force to remove them which lead the Police to resort to force. Police and military authorities often use non-lethal force or less-lethal weapons, such as, rubber bullets,  and tear gas against demonstrators in these situations.

Counter-Protests

One of the tactics of government authorities is to organize and stage counter protests. In the last protest that I participated against the Chairman of the Radio Ceylon who had used abusive and deplorable language against a prominent Human Rights worker M/s Nimalka Fernando, there was a counter protest which was not only tolerated but even encouraged by the Police while shepherding the demonstrators away from the site ostensibly to protect them from the counter-protesters. Sometimes violent situations are caused by the counter demonstrators and agents provocateurs to induce the Police to break up the protest. While the Counter Protesters also have the right to protest and exercise their right to free speech yet it is not  necessary that they should launch their counter protest in the same venue. They should be sent to another site by the Police. Nor should the Police show them undue favor for the Police are expected to be  politically neutral and be guided by the law and the Constitution.

The Police face difficult constitutional and operational issues when tasked with the dual responsibility of maintaining public order and protecting the democratic rights of protestors and marchers. But they are both important and require a sense of tact and moderation which only a politically neutral police can carry out. Unfortunately the Police have become the Police of the rulers rather than the Police of the people functioning under the law with the erosion of the independence of the Police caused by the lack of an Independent Police Commission.

In some countries there are designated areas where demonstrators are not allowed in. In USA there are areas specially designated for free speech. Critics of free-speech zones argue that they go against the First Amendment of the United States Constitution by their very nature, and that they lessen the impact the demonstration might otherwise have had. In many areas it is required to get permission from the government to hold a demonstration. But this can be used as a device to curb the right of free assembly.

I referred to an article published by the Free Library under the title “Controlling public protest: First Amendment implications”. http://www.thefreelibrary.com/Controlling+public+protest%3a+First+Amendment+implications.-

I quote “The Supreme Court has indicated that in the context of protests, parades, and picketing in such public places as streets and parks, “…citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”.

This article discusses recent court decisions concerning the constitutionality of permit requirements and injunction-based restrictions that limit the time, place, and manner of expressive activity in public places.

“Three general first amendment principles guide departmental decision making in controlling public protest. First, political speech in traditional public forums, such as streets and parks, is afforded a very high level of first amendment protection, and blanket prohibitions of such speech are generally unconstitutional. Second, reasonable time, place, and manner restrictions on such speech are permissible if they are content-neutral, narrowly tailored to serve substantial government interests, and leave ample alternative ways for the speech to occur. Third, speech or expressive conduct can be restricted because of its relationship to unlawful conduct, such as disorderly conduct or trespass”

The first amendment permits the government to impose a permit requirement for those wishing to engage in expressive activity on public property, such as streets, sidewalks, and parks.(2) Any such permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.(3) The Supreme Court has held that any permit regulation that allows arbitrary application is “…inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.”(4)

“The Supreme Court has ruled unconstitutional permit schemes that vest government decision-makers with uncontrolled discretion in deciding whether to issue a particular permit.(5) Ideally, a permit scheme should include:

1) A written description of the permit/license application process

2) Comprehensive and unambiguous standards for implementation and the objective criteria officials will use in determining whether to grant or deny a permit application

3) A time frame for the application process and for decision makers to consider an application

4) A provision for notifying the applicant that a permit request has been denied and the reasons for the denial

5) An established route to appeal a denial of an application

6) Language that avoids inherently vague terms, the meaning of which are not self-evident or easily discernible, such as “first amendment activities,” “special or unique circumstances,” “unique hardship,” “public nuisance,” or “detrimental to public health and safety,” and

7) The identity of the person or persons with the authority to grant or deny a permit request.

The  permit process must be narrowly tailored to serve significant government interests. For example, a Federal district court ruled unconstitutional a city’s refusal to grant permission for a nonprofit organization to set up portable tables at particular locations on the public sidewalks of the city’s commercial and historic district. The nonprofit organization intended to distribute literature, discuss issues of spiritual ecology, and sell T-shirts carrying messages related to the organization’s religious tenets.(6) The court said the lack of a coherent permit scheme, narrowly tailored to serve city interests, gave the city unbridled discretion to grant or deny a request.(7)

However, the court suggested the first amendment would permit the city to use narrowly tailored regulations to minimize interference with pedestrian movement on crowded sidewalks, such as established times for such activity and limitations on the size and precise positioning of the tables.(8) Moreover, the city’s legitimate interest in preserving the character and appearance of its historic district might justify restrictions, if the city’s permit scheme has content-neutral standards narrowly tailored to serve that objective and the city proves that its aesthetic concerns are sufficient to warrant the abridgment of first amendment rights.(9)

The court emphasized that a permit process cannot be used to “…impose even a place restriction on a speaker’s use of a public forum on the basis of what the speaker will say, unless there is a compelling interest for doing so, and the restriction is necessary to serve the asserted compelling interest.”

The U.S Supreme Court also ruled on the charging of fees to issue a license. They were not to be  prohibitively expensive.

The Supreme Court also held unconstitutional a buffer zone provision that ordered protestors to refrain from physically approaching any person seeking services of the clinic, unless such person indicates a desire to communicate in an area within 300 feet of the clinic. While the stated purpose of this restriction was to prevent clinic patients and staff from being “stalked” or “shadowed” as they approached the clinic, the Court said a prohibition on all uninvited approaches, regardless of how peaceful the contact may be, burdens more speech than necessary to prevent intimidation and to ensure access to the clinic.(35) The Court found this ban on all uninvited approaches unconstitutional “…absent evidence that the protesters’ speech is independently proscribable (i.e., “fighting words” or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm.”(36)

The U.S Supreme Court also ruled against “Bans on the Display of Signs and Visual Images” that may be unacceptable to others.

The Supreme Court has interpreted the first amendment as creating a “…profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”(47) Law enforcement often has the responsibility of balancing the legitimate need to maintain public order with the important interest in protecting first amendment rights.

I like to conclude with this advice given in the article.

“Because the legality of the various enforcement options discussed in this article depends on a complex and fact-specific analysis, law enforcement decision makers should obtain competent legal review of any proposed restriction on expressive activity. In that regard, a particular group’s past violent or disruptive conduct should be carefully documented because it is relevant to this analysis. Finally, it is recommended that officers receive legal training on the basic principles of first amendment law before being assigned the difficult task of controlling public protest”.

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Latest comments

  • 1
    0

    Thanks for this article!
    Sinhalaya modayas do not know what real freedom means. They think that Jarapassa’s spin is media freedom. They think that city beautification by Ministry of Defense and militarization is development, while the universities are in a mess and Health and Education sector underfunded and destroyed by UNEDUCATED and CORRUPT moronic ministers in Jarapassa’s cabinet of clowns.

    On Independence day this website is blocked while the MODA Sinha flag flies over a land of UNINVESTIGATED MASS GRAVES – from Mannar to Mulaitivu, suriyakanda, to Matale…

  • 0
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    I am sorry Mr Senanayake but this long drivel on the US is utterly boring.

    Why not bring Sri Lankan good practice into this discussion? – I have sat in one or two Courts when our judges were good ten years ago and there were many cases upholding the right to assembly if i remember. It will be good to actually hear about those – at a time when the old principles are being disregarded.

  • 0
    0

    Please Minister for Education, bring back the Subject ‘Civics’, we were taught years ago in schools
    Back then children understood that Real Democracy meant Freedom to choose.
    Now only the Pandankarayas seem to have the Freedom of the Wild Ass!

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