"No-Protest Condition Will Be Dropped for People Facing Federal Charges in Portland Demonstrations"

|The Volokh Conspiracy |

So reports The Oregonian (Maxine Bernstein); this is the condition I discussed a few days ago: "defendant may not attend any other protests … or public gatherings in … Oregon." As I mentioned then, the condition might well be unconstitutionally overbroad, though the complexity of the law of pretrial conditions makes that not entirely clear.

But the article also mentions,

Since early July, federal prosecutors have routinely asked judges to adopt other conditions before the defendants can be released pending trial: a curfew from either 8 or 10 p.m. until 6 a.m. and geographical limits that require them not to come within a five-block radius of the federal courthouse unless for official court business.

But U.S. Magistrate Judge John V. Acosta added the no-protest provision when a defendant balked at the proposed curfew, prohibiting the person from attending any protests, rallies or public assemblies while on release.

Are the curfew condition and the five-block exclusion condition constitutional? They are facially speech-neutral, but they would still have the effect of restricting speech—and indeed their purpose would presumably be to prevent attendance at protests, at least some part of the time. (What's the point of a curfew for the defendants otherwise? Is the court worried that they'll be out too late partying?) I've seen some such conditions upheld by some courts, even with pretty weak justifications; but I would think that they should be challengeable on First Amendment grounds here, though I stress again that the law in this area is complicated.

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  1. I am a little surprised that social distancing and mask-wearing never comes up. Others have noted the hypocrisy of condemning protests over lockdowns while encouraging protests over social justice. Are the judges and prosecutors afraid to mention that?

    1. No shirt. No Shoes. No Service.

      How many times have your read that and starting bloviating over your constitutional rights?

      No shirt. No Shoes. No Mask. No Service.

      Bloviate away.

      1. Catch up, will ya? These days it’s

        No Mask.
        No standing far away from others while inside.
        No plastic or digital payment.
        No service to the free and healthy people with friends and cash.

      2. Bloviate away about what — the hypocrisy of pretending that social distancing and masking are only for anti-lockdown protesters, and anti-cop protesters get a free pass?

      3. BS. If masks magically make you totally immune to covid than this lockdown is a lie and all we need to do is wear masks and otherwise continue on with life as normal. I mean our economy is circling the drain. Don’t you think this bit of info would be a little more important that it would come up more than just when you conveniently need it to defend BLM riots? But we’re not allowed to just wear masks even now. Not to mention the fact that the rioters aren’t all that great at wearing masks in the first place.

        1. Who are you talking to that said “masks magically make you totally immune to covid”? I have never seen anyone, anywhere make that point. Certainly not in the OP or this thread. The rest of your comment makes about as little sense as your initial hyperbolic sentence.

      4. “No shirt. No Shoes. No Mask. No Service.”

        Okay, I’ll come in wearing a mask, a shirt, shoes, and nothing else.

        1. Ha! Better make it a full face mask, a BLM tee, and the best running shoes you own. They just might be too conflicted to give chase.

          Some rules beg to be taken literally. Why we don’t see more Spidermen, Darth Vaders, Rorschachs, Donnie Darkos, Disney Cinderellas, Smurfs, Jason hockey and Guy Fawkes masks in the grocery aisles is puzzling and disappointing, to tell the truth.

          1. I’m going to get a plague mask…

      5. “No shirt, no shoes, no service” imposed by a private entity as a condition of shopping at their one store.
        “No protesting” imposed by an arm of the government as a condition of participation in the legal process.

        You honestly can’t see the difference?

        1. How is “no protesting” any different from “don’t leave the state” or “register with probation”?

          We have (or had, until last March) a Constitutional right to travel to other US states.

          1. Ed,

            Because protesting might directly involve questioning the justice of the current criminal prosecution (or conviction) affecting you (or your rights as a person convicted of a crime).

            Meanwhile, don’t leave the state is to ensure you show up for trial, etc., so has a direct relationship to allowing you the general freedom to leave prison. You can leave, but stay close. Just a more expansive house arrest/incarceration, basically, and the purpose is to ensure you don’t skip out (not to deprive you of a right that might make the government uncomfortable). Likewise, register with probation is to ensure the criminal justice system keeps track of you to ensure you complete the conditions of your sentence, it is not for the purpose of otherwise limiting your rights. A better analogy is “no attending religious services” which would be plainly unconstitutional.

            It really isn’t hard to see the differences. Some conditions that affect some constitutional rights does not necessarily entail that any conditions that affect any constitutional rights are okay. Analogies are only useful to the extent they are of the same type and relate to similar objectives….both involve “constitutional rights” is too broad to be useful here. (Kind of like how the ability to enjoin a person from coming within 200 meters of Jane Doe is permitted despite freedom of association, travel, etc., is not the same as enjoining a person from coming within 200 meters of any other person.)

  2. I think if a person were arrested for a disorderly or unlawful assembly as many of these were and there are nightly disorderly crowds that must be dispersed by police then a person arrested in connection with such conduct could be ordered not to participate in further such assemblies. When I raised this before several commenter pointed out that the right of assembly is constitutionally protected, however the Constitution actually says “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” these demonstration seem to routinely degenerate into disorderly very non-peaceful attacks on government property and seem have little to do with petitioning or dealing with specific grievances, which are generally not federal issues anyway.

    A curfew is probably too restrictive, as there are many places one could go and avoid the disorder, however ordering someone who was arrested for participating is civil disorder from continuing to participate in civil disorder seem a reasonable step. I don’t know if any people were arrested more than once, but the man who accused to feds of kidnapping him and letting him go hours later was identified in some news reports as a frequent participant in the protests. Finding the same people returning every night, as I’m sure some do could lead to more serious charges.

    1. The constitutional problem with your argument is that it relies on guilt by association. The fact that the assemblies in aggregate degenerate into non-peaceful events does not change the right of the individual to peacefully assemble. You may not create guilt-by-association merely because someone is near other people who become violent. Our legal structure is built on an assumption of individual responsibility for discrete acts and crimes.

      Yes, the protestor can be charged for non-peaceful acts in the first protest. But banning the person from all future protests even if that individual remains peaceful is unjustifiable. This is especially true when the person has merely been charged but not convicted.

      Note, by the way, that even the police do not have an affirmative duty to protect you from the violence of others. There is no legal duty of the private citizens in an assembly to police or control the other citizens in that assembly.

      The second problem with your comment is that the right to petition the government applies at all levels. Petitioning about specific grievances is entirely appropriate and allowed whether or not they are federal issues. Municipal police abuse may be a municipal issue – and protesting your municipal government is the right source of redress. But, by the way, yelling at the feds to get them to put pressure on your municipal government is also allowed.

      1. Someone convicted of Federal tax evasion is prohibited from “associating with known criminals” or something to that effect — not prohibited from conspiring with them, but merely associating with them.

        So here one could theoretically prohibit “associating with known protesters”, i.e. not attending protests, under the auspices of the same authority.

        1. Ed,

          You give away your true objective. There is nothing illegal about protesting. The analogy fails. Spectacularly.

          1. Breaking things that aren’t yours and restricting the liberty of other persons (by blocking highways) is legal?

            In what dimension of American law?!?!?

            BTW — SCOTUS has said “time, place, and manner” restrictions are OK.

            1. That doesn’t describe all protests.
              NOVA has your number.

            2. Ed,

              You would find more success and embarrass yourself less if you addressed the arguments people make instead of making up new arguments that no one made and then feigning outrage at their audacity.

              Obviously, no one ever said breaking things that aren’t yours is legal. Multiple question marks interspersed among exclamations doesn’t change the fact that you are arguing against a boogeyman of your own creation and then pretending it is an accurate representation of all people who don’t agree with your ideology. And then expressing self-righteous indignation about the whole thing. It’s pathetic, really.

        2. Dr Ed, has that prohibition against mere association withstood constitutional challenge? Or is it a clause that prosecutors slap in and hope will continue to slip by?

          Unless that clause has been specifically upheld, it doesn’t work as evidence that a prohibition against “associating with known protestors” would also be upheld.

  3. I can’t think of any reason to prohibit someone from attending a protest other than to suppress the protest (i.e. political speech).

    Constraints on defendants I suppose are necessary to mitigate the chance of them doing something illegal.

    This constraint appears to keep them from doing something legal.

    1. How do you feel about the anti-lockdown protests?

      How do you feel about the hypocrisy of treating anti-lockdown protests and anti-cop protests differently? The virus doesn’t so differentiate.

    2. to prevent people from spreading covid. If its okay to ban every other activity under the sun including other protests under such rationale I don’t see why BLM riots are so special.

    3. “I can’t think of any reason to prohibit someone from attending a protest other than to suppress the protest (i.e. political speech).”

      *I* can — to reduce the number of bricks thrown, to reduce the amount of fireworks discharged, and to reduce the malicious use of lasers comes to mind for starters….

      Or do those activities also constitute “political speech”?!?

      1. As your other comments show, Ed, you are incapable to differentiating “protest” from various other criminal activities.

        I don’t think anyone is arguing that the person can’t be prohibited from throwing bricks at people or others’ property, discharging fireworks in violation of law, or maliciously using lasers. Those things are already prohibited by the law.

        And, in fact, if their alleged offense involved misusing a laser, it likely is fine to prohibit them from possessing a laser (especially assuming a laser is not somehow essential to their job, exercising some other essential right).

        But prohibiting protesting generally is prohibiting perfectly legal conduct that affects, among other things, their right to raise attention of abuses that affect other people and them personally. The fact that other people might commit criminal acts there is irrelevant. It’s kind of like prohibiting someone from going to a grocery store because other people sometimes shoplift there. Or even that this person is alleged to have shoplifted from a grocery store, it is way overboard to prohibit them from going to any store that sells food pending trial. Maybe you could prohibit them from going to the particular grocery store at which they are alleged to have shoplifted (of course, that store owner can keep them out without a court order).

        1. 269 MGL 1 states:
          ” If five or more persons, being armed with clubs or other dangerous weapons, or if ten or more persons, whether armed or not, are unlawfully, riotously or tumultuously assembled in a city or town, the mayor and each of the aldermen of such city, each of the selectmen of such town, every justice of the peace living in any such city or town, any member of the city, town, or state police and the sheriff of the county and his deputies shall go among the persons so assembled, or as near to them as may be with safety, and in the name of the commonwealth command all persons so assembled immediately and peaceably to disperse; and if they do not thereupon immediately and peaceably disperse, each of said magistrates and officers shall command the assistance of all persons there present in suppressing such riot or unlawful assembly and arresting such persons. For the purposes of this section, the University of Massachusetts at Amherst shall be considered to be a town.”

          1. “tumultuously assembled”

            There is no right to protest tumultuously….

            And “assembled” means group guilt…

            1. Assembled doesn’t mean group guilt. It means assembled as a group, i.e., that you must be part of the group who are tumultuously assembled. It is far from clear that people who don’t like a protest can force the protestors to go home by being tumultuous among a group of which they are not a part.

        2. People like you are hypocrites — *IF* the law is as you purport it to be (and it isn’t in Massachusetts at least) *then* you ought to have been raising hell when it was being applied to thousands of college students celebrating the Red Sox nearly 20 years ago now.

          Remember Victoria E. Snelgrove WHO WAS KILLED by a Boston Police Officer? How many of these protesters have been killed by the police. Right — none.

          1. People like you aren’t particularly bright.

            A. Even if they law was as I purport it to be, and even if that means that applying MGL to a tumultuous celebration by college students of a sports victory would violate the constitution in the same way as would applying it to a political protest, I am still under no obligation to be as outraged at applying a law to sports celebrations when I am (according to you) raising hell about it (well, not it, but what you imagine must be the same law in Portland) being applied to political protestors. You are just grasping at straws to be able to throw around “hypocrite” to avoid engaging in good faith. That says something about both your intelligence and your character.

            B. You remain the king of non sequitur whataboutism. And all caps don’t substitute for a relevant, cogent argument.

  4. When people misuse guns we have no problem taking away their constitutional right to have guns.

    1. the covid fairy makes you immune to disease if you’re throwing a molotov cocktail for BLM. Its a obamadamn miracle. But its psychic so if you change your mind halfway you might end up getting sick.

    2. My gun enforces uncivil distancing.

      https://amgreatness.com/2020/07/22/word-salad-in-the-time-of-coronavirus/

      I find analyzing ‘masks’ in light of such as gun-carry, and sunglasses, and bicycle-helmets, all safety-ism quite enlightening.

      Good people ought to be armed as they will, with wits and Guns and THE TRUTH.

  5. The right to peaceably protest should be inviolable, but then again I don’t agree with the practice of felony disenfranchisement. Isn’t voting the ultimate expression of free speech?

    Between legal impediments and PC content enforcement and censorship, our “free speech” seems to be quite a conditioned and diminishing right.

    1. 1. Voting isn’t free speech as such, which is why we can deny the vote to children and to noncitizens (or to citizens who reside outside the relevant voting district).

      2. The Supreme Court has held that many limits on voting rights violate the Fourteenth Amendment, but that Amendment expressly contemplates the constitutionality of limits based on past criminal convictions (see this post for more). That doesn’t mean that denying the vote to felons is necessarily a good idea, but it is constitutional.

      1. Thank you for the response. I understand felony disenfranchisement is constitutional and has been upheld in the courts. It just sits wrong with me for various reasons.

        You’ve probably done posts on the extent children generally have enjoyed or been denied the right to free speech, even off campus. Note to self to look for them!

        1. The thing that bothers me is the trend of colleges imposing en loco parentis upon students who are emancipated adults.

          1. “The thing that bothers me is the trend of colleges imposing en loco parentis upon students who are emancipated adults.”

            Yes, Dr. Ed, that is troubling, especially given the politics usually involved in higher learning institutional decisions.

            Too, our current, continued, cultural infantilization of teens and young adults wrt to personal and financial responsibilities is both a problem for them and the rest of us, (of course there are notable, exceptional young men and women these days!), but I can’t say my own generation was a great deal more responsible upon entering college. At least, we didn’t have university authorities nannying and making bizarre rules, penalties, and excuses for us, and enabled with all manner of student loans, perhaps forcing us to make our own way through school and life’s vicissitudes sooner and more independently.

            Still, aren’t the generations after us a reflection of or reaction to us and the world we’re ostensibly in charge of?

      2. Professor Volokh, I must respectfully disagree with you on the free speech rights of unemancipated minors — would not mandatory school attendance (truancy laws) be a violation?

        Furthermore, within limits, custodial parents have an absolute right to both proscribe and restrict the speech of minors in their custody. They can make them go to church and prohibit them from wearing undesired attire, and can prevent them from going downtown at 10 pm. Aren’t all of those First Amendment rights?

        Aren’t voting rights established by a mosaic of Federal and State statutes that are then influenced by 3 Constitutional Amendments? (Remember that in 1789, the majority of people could not vote.)

  6. How about a release condition baring them from attending riots, would that be okay?

    1. How would you know ahead of time which peaceful protests will devolve into riots and which will remain peaceful? Without the ability to predict the future, you are not on reasonable notice of what behavior will or will not be deemed criminal. So, no.

      1. I think it’s pretty clear in Portland, that if you’re attending a “protest” at certain sites during the night, you were planning on attending a riot. We can’t demand that people predict the future, but we don’t have to pretend that they are unaware of the past.

        1. I mean, back in May, some of the curfews were announced 20 minutes before they began. So clearly state governments think that yes, they really can demand that people predict the future.

  7. During the day there are peaceful protests, at night, riots. This makes a curfew for those charged with rioting seem reasonable. Likewise prohibiting returning to the scene of the alleged crime.

    Barring protest, period? Not so reasonable.

  8. ” Magistrate Judge John V. Acosta added the no-protest provision when a defendant balked at the proposed curfew”

    It makes perfect sense if he wanted to go to midnight mass or something — OK, I won’t impose a curfew because you have a legitimate thing to do in the middle of the night, I’ll instead impose this restriction.

    1. Or volunteer the overnight shift at the homeless shelter.

      Before the anti-God bigots make a fuss, let me say that (a) I am not Catholic and (b) I don’t particularly care why they have church services in the middle of the night. As long as they aren’t harming anyone, e.g. burning buildings or blinding cops, they have every right to have their services any time they damn well please — this is a free country.

      1. Or at least was before last March.

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