After George Floyd was killed by Minneapolis police officers, Joe Biden was certified as the President by the counting of the electoral votes on January 6, the Supreme Court withdrew the federal constitutional right to an abortion, and the raid for top-secret documents at Mar-a-Lago public protests have again and again exploded across the United States. At times, those demonstrations resembled the peaceful methods of Martin Luther King Jr. and the nonviolent marches of Vietnam War protesters. At other times, the protests resembled the obstructionist methods of the Occupy Wall Street movement and even armed insurrection and rebellion. Our law of public protest – with its extraordinary protections for those who seek municipal permits before engaging in mass demonstrations and marches – was created largely in response to the methods of protest employed in the Civil Rights and Vietnam War eras. Our law is not so well adapted to the methods employed by Occupy Wall Street and obviously criminalizes protests that turn into insurrection and rebellion.
This panel tries to address the future regulation of public protest. It examines not only the existing law of public protest but also the adaptability of that law to modern protest methods. In addition, the panel examines the enormous challenges that modern protest methods create for municipalities and police departments. Finally, the panel inquires how courts will likely review the street-level, moment-by-moment decision-making of police officers who confront spontaneous demonstrations conducted without a permit.