The assertion that "It signals to observers that participation itself—watching, filming, speaking—may carry extreme risk." resonated with me in this current climate. One thing that felt like an extension of engaging with protests in this (or any way) are the increasing attempts at suppressing/criminalizing political ideology and speech. It feels like alongside very concrete displays of speech suppression in the public forum, there have also been very clear attempts at suppressing ideas or ideology within a higher education context as well as in the public forum. I would agree that, now, it seems that dissent is only tolerated when it is "quiet, distant, and safely removed."
Like the quote from City of Houston v. Hill explains, one of the main boundaries between a free society and a police state is our ability to speak in opposition to the government/law enforcement. The way that Renee Good died is a dangerous step towards government suppression of our free speech. Not being able to oppose government actions vocally is a slippery slope towards not being able to speak out against the government at all. If every act of protest gets labelled unlawful disobedience, and we start to excuse overt acts of violence against dissenters, then we are moving towards a country without freedom of speech at all.
So much of the hostile-audience case law is really about the government's response to a crowd rather than the speaker's words. Cox v. Louisiana also involved tear gas used on a peaceful demonstration, and the Court held that an "undifferentiated fear" of violence couldn't justify breaking it up when police could manage the crowd. Justice Black's Feiner dissent goes further: before officials interfere with lawful speech, they have to make "all reasonable efforts to protect" it. That's a useful lens for the dispersals described in the piece, because treating an entire gathering as a threat skips that step and runs into the Claiborne principle that some people's unlawful acts don't strip everyone else of protection. I was also struck by the "domestic terrorism" label. The casebook notes that Holder v. Humanitarian Law Project never mentions Brandenburg, which suggests that once speech is framed as a security threat, the usual protective tests can drop out of the analysis. I think the warning discussed here about collapsing dissent into threat seems to be about exactly that move.
Something I keep noticing is how much of the public conversation about this gets pulled into the use of force question. Whether the agent reasonably feared for his life is the part that is easiest to see and argue about, so it ends up crowding out the speech question almost entirely. I agree with the point that regulation is not escalation, but I am not sure how a court would actually apply that. If what is being regulated is obstruction, then the conduct itself is probably something the government can reach, and the First Amendment problem is really about why the officers acted rather than what they did. That turns it into something closer to a retaliation claim, which is a much harder thing to prove. The labelling of the incident as domestic terrorism is the part that concerns me most, because once something is framed as a security question it gets very hard to review whether the government was actually reacting to the viewpoint.
I think that situations like Good's show the issues when protests can escalate and police are forced to make decisions about protecting public rights and public safety. It is one thing when the police are attempting to keep the peace between two groups that are protesting against each other, and it is the police's responsibility to keep the groups separate and prevent the disagreement from getting violent. However, Good's shooting shows how it is a different perspective from the police when they are the ones being protested. Then they are forced to move from being an independent third party towards being the subject of the dispute. This is when it is most important for police to protect the interests of the protesters (because protesting police and other government actions is a bedrock of the First Amendment). However, situations like this will result in fewer protests, meaning it will be harder to change the government action, defeating the First Amendment purpose.
You’re identifying something First Amendment law calls a chilling effect. The idea is that the government doesn’t have to directly prohibit speech to suppress it. If people reasonably fear that speaking or protesting will expose them to serious consequences, they may choose not to speak at all.
We understand that speech protection will not protect interference with law enforcement duties but these events clearly show an entanglement with that concept and viewpoint suppression. There is certainly a chilling effect that results from these events. We think of political speech as having the highest threshold of 1A protection but that may not be the case in places if would be protestors reasonably fear backlash from the government that is meant to protect their speech.
Protest alone cannot be considered inherently dangerous regardless of topic or venue. That precedent would clearly erode decades of 1A jurisprudence.
I thought your discussion of the "chilling effect" was interesting. This case was so widely publicized. There were people arguing for and against both sides. People analyzed the distance between the car, different camera angles, and everyone on the scene. I completely understand that there may be a need to regulate physical obstruction, as it moves from protected speech into actual conduct. The issue that is being discussed so heatedly is "did he think his life was in danger?" The problem with that question is that even if he did, his reaction was far too extreme. I think the concern is whether the response was proportional to the circumstances. The consequences of that answer could be extreme. Firstly, because the agent did not face any charges or repercussions for his actions. That could potentially send a message to other officers or agents that they are able to react in that way when faced with a similar situation. They might interpret that to mean that reacting with extreme force is protected. Second, and perhaps more importantly, there is the effect this can have on people who want to exercise their First Amendment rights in the future. Someone who wants to peacefully protest against ICE or federal immigration enforcement in their own neighborhood may now be scared to participate because they have seen how severe the consequences can be for someone involved in a protest. Even if that person is engaging in completely protected speech or conduct, they may not feel confident that the officers present will recognize or respect that distinction. If we allow officers to try and draw the line of what is “allowed” at protests, we face the risk of protestors not protesting at all out of fear. A constitutional right is not particularly meaningful if people technically have the right to exercise it but are too afraid to do so.
We do like to think we live in a country where a person can protest law enforcement freely, but unfortunately the reality is bleak. Peaceful protest against law enforcement (or anything) continues to be met with antagonism that escalates into actual violence against the people protesting, and that gap between the freedom we're told we have, and what actually happens in practice is a whole entire problem.
The line between living in what we think is a free state and a police state feels less theoretical every time something like the shootings of Renee Good and Alex Pretti happens. We are not clearly on the ‘free’ side of that line anymore, and instead we are teetering it. Genevieve made a stellar point about how this suppression of protest is not strictly limited to the street, either. It's not only about the suppression that happens during an actual protest, it's the broader pattern of criminalizing political ideology, whether that's in higher education or in public spaces just… generally.
I am in full agreement that dissent only seems to be tolerated when it's quiet, distant, and disconnected from whoever (or whatever) it's actually aimed at. The second it gets close, loud, or inconvenient, it stops being treated as protected speech and starts being treated as a threat that is sometimes met with immediate and fatal punishment.
I think dissent in the form of peaceful protest will always have constitutional protection in America. The actions of the ICE officer who shot Renee Good could certainly have a chilling effect on speech made in protest, but it seems like the shooting of Good actually incited even more protests. Escalation typically leads to more escalation. Even in countries that lack the speech protections present in the US, dissent persists, sometimes at far greater cost. My first thought is Tiananmen Square. I just don't think dissent is produced by legal permission or that it increases knowing you will be free to dissent. In my mind, its the opposite, the less constitutional protection dissent has, the more of it there will be.
The assertion that "It signals to observers that participation itself—watching, filming, speaking—may carry extreme risk." resonated with me in this current climate. One thing that felt like an extension of engaging with protests in this (or any way) are the increasing attempts at suppressing/criminalizing political ideology and speech. It feels like alongside very concrete displays of speech suppression in the public forum, there have also been very clear attempts at suppressing ideas or ideology within a higher education context as well as in the public forum. I would agree that, now, it seems that dissent is only tolerated when it is "quiet, distant, and safely removed."
Like the quote from City of Houston v. Hill explains, one of the main boundaries between a free society and a police state is our ability to speak in opposition to the government/law enforcement. The way that Renee Good died is a dangerous step towards government suppression of our free speech. Not being able to oppose government actions vocally is a slippery slope towards not being able to speak out against the government at all. If every act of protest gets labelled unlawful disobedience, and we start to excuse overt acts of violence against dissenters, then we are moving towards a country without freedom of speech at all.
So much of the hostile-audience case law is really about the government's response to a crowd rather than the speaker's words. Cox v. Louisiana also involved tear gas used on a peaceful demonstration, and the Court held that an "undifferentiated fear" of violence couldn't justify breaking it up when police could manage the crowd. Justice Black's Feiner dissent goes further: before officials interfere with lawful speech, they have to make "all reasonable efforts to protect" it. That's a useful lens for the dispersals described in the piece, because treating an entire gathering as a threat skips that step and runs into the Claiborne principle that some people's unlawful acts don't strip everyone else of protection. I was also struck by the "domestic terrorism" label. The casebook notes that Holder v. Humanitarian Law Project never mentions Brandenburg, which suggests that once speech is framed as a security threat, the usual protective tests can drop out of the analysis. I think the warning discussed here about collapsing dissent into threat seems to be about exactly that move.
Something I keep noticing is how much of the public conversation about this gets pulled into the use of force question. Whether the agent reasonably feared for his life is the part that is easiest to see and argue about, so it ends up crowding out the speech question almost entirely. I agree with the point that regulation is not escalation, but I am not sure how a court would actually apply that. If what is being regulated is obstruction, then the conduct itself is probably something the government can reach, and the First Amendment problem is really about why the officers acted rather than what they did. That turns it into something closer to a retaliation claim, which is a much harder thing to prove. The labelling of the incident as domestic terrorism is the part that concerns me most, because once something is framed as a security question it gets very hard to review whether the government was actually reacting to the viewpoint.
I think that situations like Good's show the issues when protests can escalate and police are forced to make decisions about protecting public rights and public safety. It is one thing when the police are attempting to keep the peace between two groups that are protesting against each other, and it is the police's responsibility to keep the groups separate and prevent the disagreement from getting violent. However, Good's shooting shows how it is a different perspective from the police when they are the ones being protested. Then they are forced to move from being an independent third party towards being the subject of the dispute. This is when it is most important for police to protect the interests of the protesters (because protesting police and other government actions is a bedrock of the First Amendment). However, situations like this will result in fewer protests, meaning it will be harder to change the government action, defeating the First Amendment purpose.
You’re identifying something First Amendment law calls a chilling effect. The idea is that the government doesn’t have to directly prohibit speech to suppress it. If people reasonably fear that speaking or protesting will expose them to serious consequences, they may choose not to speak at all.
We understand that speech protection will not protect interference with law enforcement duties but these events clearly show an entanglement with that concept and viewpoint suppression. There is certainly a chilling effect that results from these events. We think of political speech as having the highest threshold of 1A protection but that may not be the case in places if would be protestors reasonably fear backlash from the government that is meant to protect their speech.
Protest alone cannot be considered inherently dangerous regardless of topic or venue. That precedent would clearly erode decades of 1A jurisprudence.
Thank you for this piece…and for helping us think through this essential component of our current tensions.
I thought your discussion of the "chilling effect" was interesting. This case was so widely publicized. There were people arguing for and against both sides. People analyzed the distance between the car, different camera angles, and everyone on the scene. I completely understand that there may be a need to regulate physical obstruction, as it moves from protected speech into actual conduct. The issue that is being discussed so heatedly is "did he think his life was in danger?" The problem with that question is that even if he did, his reaction was far too extreme. I think the concern is whether the response was proportional to the circumstances. The consequences of that answer could be extreme. Firstly, because the agent did not face any charges or repercussions for his actions. That could potentially send a message to other officers or agents that they are able to react in that way when faced with a similar situation. They might interpret that to mean that reacting with extreme force is protected. Second, and perhaps more importantly, there is the effect this can have on people who want to exercise their First Amendment rights in the future. Someone who wants to peacefully protest against ICE or federal immigration enforcement in their own neighborhood may now be scared to participate because they have seen how severe the consequences can be for someone involved in a protest. Even if that person is engaging in completely protected speech or conduct, they may not feel confident that the officers present will recognize or respect that distinction. If we allow officers to try and draw the line of what is “allowed” at protests, we face the risk of protestors not protesting at all out of fear. A constitutional right is not particularly meaningful if people technically have the right to exercise it but are too afraid to do so.
We do like to think we live in a country where a person can protest law enforcement freely, but unfortunately the reality is bleak. Peaceful protest against law enforcement (or anything) continues to be met with antagonism that escalates into actual violence against the people protesting, and that gap between the freedom we're told we have, and what actually happens in practice is a whole entire problem.
The line between living in what we think is a free state and a police state feels less theoretical every time something like the shootings of Renee Good and Alex Pretti happens. We are not clearly on the ‘free’ side of that line anymore, and instead we are teetering it. Genevieve made a stellar point about how this suppression of protest is not strictly limited to the street, either. It's not only about the suppression that happens during an actual protest, it's the broader pattern of criminalizing political ideology, whether that's in higher education or in public spaces just… generally.
I am in full agreement that dissent only seems to be tolerated when it's quiet, distant, and disconnected from whoever (or whatever) it's actually aimed at. The second it gets close, loud, or inconvenient, it stops being treated as protected speech and starts being treated as a threat that is sometimes met with immediate and fatal punishment.
I think dissent in the form of peaceful protest will always have constitutional protection in America. The actions of the ICE officer who shot Renee Good could certainly have a chilling effect on speech made in protest, but it seems like the shooting of Good actually incited even more protests. Escalation typically leads to more escalation. Even in countries that lack the speech protections present in the US, dissent persists, sometimes at far greater cost. My first thought is Tiananmen Square. I just don't think dissent is produced by legal permission or that it increases knowing you will be free to dissent. In my mind, its the opposite, the less constitutional protection dissent has, the more of it there will be.