March 31, 2022
On March 31, 2022, Protect Democracy filed an amicus brief in the Tenth Circuit Court of Appeals in NAACP v. O’Connor, joining an important fight for the right to protest—a fundamental pillar of our democracy that has been under attack by state governments across the country.
The Oklahoma Conference of the NAACP brought a legal challenge against Oklahoma House Bill 1674 to vindicate its First Amendment rights to speak, petition, and peaceably assemble—using the public streets—in protest. The Oklahoma legislature enacted HB1674 in response to widespread demonstrations advocating police accountability for killing unarmed Black Americans. HB1674 subjects organizations to severe fines for associating with third parties charged under Oklahoma’s existing anti-riot and unlawful assembly laws. Such penalties may be incurred if the organization is deemed a “conspirator.” But the law does not define the term conspirator, nor is it limited to conspiracies to engage in riot-related crimes. The law thus fails to give notice of what conduct is unlawful.
The law also employs vague language in criminalizing the obstruction of streets in a manner that renders them “impassable” or renders passage “unreasonably inconvenient.” The vagueness of this provision allows it to be applied to expressive conduct protected by the First Amendment such as walking in the street or approaching a car with a leaflet.
As a whole, the law strikes directly at the tools and tactics organizations like the NAACP have used to advocate for the expansion of the rights of all Americans.
The brief, filed on behalf of Protect Democracy, The Niskanen Center, and PEN America, argues that the appellate court should affirm the district court’s decision to preliminarily enjoin Oklahoma from enforcing HB1674’s unconstitutionally vague and overbroad provisions. It recounts the powerful history of dissent and public protest in the United States, from the colonial era, to the movement to abolish slavery, to the twentieth-century civil rights movement, and the longstanding need to protect this fundamental right and engine of social change from incursion by mob violence and state repression. The brief explains that HB1674, in aiming to silence one end of the political spectrum, in effect chills speech all along it. It’s “not only unconstitutional, but also shreds the right to dissent that forms the foundation of our democratic system of government.”
The Framers of our Constitution designed First Amendment rights to maximize opportunities for dissenting and disfavored groups to meaningfully participate in the democratic process and thereby check political power. But especially when exercised by these groups, the right to protest has been vulnerable to mob and state repression.
For example, when abolitionists launched a public campaign to end slavery in the 1830s, they faced enormous political backlash in both the North and the South. Violent mobs—supported by members of Congress—sought to silence the abolitionists’ protest. Even as the state establishment refused to give force to abolitionists’ First Amendment rights, however, dissent and protest overcame this government-backed suppression, bending public opinion toward justice. Twenty-five years later, the Republican party’s 1860 platform called for abolition.
In the Antebellum South, meanwhile, state lawmakers acted to deny Black Americans’s exercise of assembly and expression. After the Civil War, Reconstruction Era lawmakers responded with the Fourteenth Amendment, which recognized the fundamental liberties of newly emancipated Black citizens. Yet persistent violent—and deadly—attempts to deny Black Americans their legal rights underscored the ongoing threat to the assembly rights of anyone challenging the status quo. Further, the Supreme Court in United States v. Cruikshank (1875), severely curtailed the federal government’s power to protect Black citizens’ constitutionally guaranteed rights and overturned the convictions of white vigilantes that killed scores of Black Americans in the Colfax Massacre.
In the twentieth century, legal tools to enforce First Amendment protections against mobs and speech-suppressing government actors slowly but surely emerged. In his famous concurring opinion in Whitney v. California (1927), Justice Brandeis wrote that free speech and assembly “should be a fundamental principle of the American government.” Ten years later, the Supreme Court emphatically declared in De Jonge v. Oregon (1937) that “peaceable assembly for lawful discussion cannot be made a crime.” In Terminiello v. City of Chicago (1949), the Court recognized that a function of free discussion in our democracy is “to invite dispute.”
Amid the twentieth-century civil rights movement, the Supreme Court stressed that the Constitution forbids criminalizing “peaceful expression of unpopular views.” In Edwards v. South Carolina (1963), the Court overturned 187 Black high school and college students’ convictions for marching in protest of segregation laws. The Court also reversed convictions of Black protesters who engaged in sit-ins at a segregated restaurant counter, holding in Garner v. Louisiana (1961) that convicting peaceful protesters based on law enforcement’s opinion that merely breaking custom constituted a breach of the peace violated protesters’ constitutional rights.
Beginning in the mid-twentieth century, our courts revolutionized how litigants challenge efforts to curtail protest by developing the vagueness and overbreadth doctrines. Criminal statutes must provide “fair notice” of what violates the law (vagueness). Speech regulations must “be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society” (overbreadth).
In Dombrowski v. Pfister (1965), the Supreme Court addressed threatened prosecutions of members of the Southern Conference Education Fund (SCEF), a civil-rights organization promoting desegregation and Black voting rights, as “subversive” or “communist-front.” In a landmark ruling, the Supreme Court allowed a facial challenge of the law SCEF members allegedly violated because the danger to free expression from the mere threat of prosecution under a vague or overbroad law demands immediate action from the courts.
Despite the United States’ mixed record in honoring our foundational rights to dissent and protest, our courts now broadly protect free expression when governments wield criminal law enforcement to suppress efforts in the long struggle to perfect our union. A vague and overbroad law, HB1674 unconstitutionally threatens these rights. If unblocked, the law will ensnare in its net not only racial-justice advocates but also dissenters all along the political spectrum.
Read the full brief here.