Democracy’s a Riot
posted by Thomas Crocker
Taking a break from watching Wall Street turmoil, I notice that the NY Times reports today that Minneapolis is engaged in a post-game analysis of its heavy-handed police tactics surrounding the recent Republican National Convention. A pattern has emerged, at least since the 1999 Seattle protests: protect property and control crowds by any means thought necessary and worry about the constitutional consequences later. As the Times reports, more than 500 lawsuits are ongoing in the wake of the 2004 Republican convention in New York. But more than the usual public disorder violations, it seems that more serious charges of felony riot are being initially levied even against journalists in Minneapolis. The Times story provides: “‘At some point even a journalist has to recognize that they are in violation of the law,’ Tom Walsh, a St. Paul Police spokesman, said as the arrests were taking place. ‘Are they going to get arrested or are they going to cover it from a distance?’”
Tom Walsh has identified a key issue relating to democratic participation in light of police tactics at public gatherings: must individuals choose between facing arrest, or participating in (or reporting on) democratic interaction only from a distance? At political events—where public discussion and dissent might occur—government authorities have increasingly insisted on distance, in the name of order and property protection. Distance is a concept at home with the rhetoric of “out of touch” employed by both presidential candidates. A conundrum emerges, so it seems. “Out of touch” suggests that a candidate has not interacted with ordinary people closely enough to understand the issues and problems they face. Yet, when the people try to approach, to close the distance in an unscripted, more immediate personal encounter, they risk arrest and riot charges. No doubt, when public encounters are used to disrupt legitimate democratic participation by others, the need for public order prevails. Order, however, is how authorities justify maintaining democratic distance. When the public is prevented from drawing near on the grounds that officials wish to avoid “verbal tumult, discord, and even offensive utterance,” as Justice Harlan puts it in Cohen v. California, being advised that one can participate in democracy only at a distance, is a sign of democratic weakness, not strength (to invert Justice Harlan’s formula—“That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength”). In light of the demand for distance, I think governing officials need reminding that sometimes democracy’s a riot, and that’s a good thing.
September 17, 2008 at 5:16 pm
Posted in: Constitutional Law, Current Events
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Responses (2)
Orin Kerr - September 18, 2008 at 2:11 am
“must individuals choose between facing arrest, or participating in (or reporting on) democratic interaction only from a distance?”
Doesn’t this depend on what “democratic interaction” means? Walsh was talking about criminal activity, not lawful protests. Are riots and the like “democratic interaction”?
JP - September 18, 2008 at 11:10 am
“No doubt, when public encounters are used to disrupt legitimate democratic participation by others, the need for public order prevails.”
This seems to have been the case in Denver and St. Paul. The conventions were “legitimate democratic participation by others,” and the demonstrations where arrests occurred seem to have been intended to disrupt those (e.g., continuing to protest for hours after their permits expired in order to block roads and bridges allowing delegates and others access to the conventions). Moreover, the distance was intended to prevent not only “verbal tumult,” but physical assault; individuals or groups in the crowd of protesters threw rocks and sprayed bleach at the delegates.
I still have no idea whether the courts found the correct balance when approving the time/place/manner restrictions on the convention protests, but after your series of posts, I am more confident that the police acted appropriately.
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