The Volokh Conspiracy

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Free Speech

Montana Town Forbids All Protests (Except at City Hall), Because of Planned Protests of "Drag Story Hour"


From a Livingston (Montana) Police Department order, posted by the Livingston Enterprise (Sean Batura):

Whereas, a local business is presenting a "drag story hour" hosted by the Livingston Pride Coalition;

Whereas, individuals in drag reading stories to children is a sensitive issue in today's political climate and has garnered national attention;

Whereas, The Livingston Police Department has received credible information of individuals planning to protest the "drag story hour" including groups who are planning to be armed with firearms;

Whereas, the primary function of the Livingston Police Department is to ensure the safety of the citizens of the community, preserve the peace, and mitigate traffic issues;

Whereas, lndividuals have the constitutionally protected right to peacefully assemble and protest;

Whereas, extraordinary measures are required to protect the public health, safety and welfare of the City's citizens;

Whereas, United States Supreme Court Case—United States v. Grace, 461 US 171 (1983) has established the authority of government to enforce reasonable time, place, and manner of protests;

Now, therefore; by direct order of the City Manager, all protests occurring on May 20, 2023, between the hours of 0800 and 1700 hours shall be conducted in the parking lot of City Hall located at 220 E. Park Street, Livingston Montana. This Livingston Police Department General Order is approved and issued on this 18th day of May, 2023. All those found in violation of this order shall be subject to prosecution by the City of Livingston.

But this is unconstitutional. The right to speak includes the right to speak outside an establishment that one is protesting, whether it's an employer that's being picketed, a fur store, an abortion clinic, or anything else. Indeed, the case that the Police Department cites, U.S. v. Graceupheld the right to protest on a city sidewalk outside the Supreme Court. The government generally can't require protesters to protest elsewhere (for instance, 2½ blocks away, which seems to be the distance between the City Hall parking lot and the bookstore).

In extremely unusual circumstances, for instance when massive protests are expected on occasion of a political convention, the government may be able to exclude protests from a narrow zone outside the convention, see, e.g., Marcavage v. City of N.Y. (2d Cir. 2012):

As many as 50,000 people were expected to attend the four-day Convention. The NYPD anticipated that there would be a volume of protest activity not seen in New York City in decades, including potentially hundreds of thousands of protesters throughout the city.

The [Madison Square] Garden [where the convention was held] sits atop Pennsylvania Station ("Penn Station"), one of the transportation hubs of New York City. Approximately 1,300 trains and 600,000 riders pass through Penn Station each day. The vicinity is ordinarily congested by vehicular and pedestrian traffic; a major event at the Garden can bring thousands of additional pedestrians.

But this situation (which in any event involved a "small no-demonstration zone on a two-block strip of Seventh Avenue," not a categorical ban on all protesting in a town with one narrow permitted protest space) is far removed from what seems likely to be a small protest targeting a small event. And while the Livingston Police Department doubtless has fewer officers than the NYPD, their job is to protect both the event attendees and the protesters—again, just as if it were a labor protest outside a factory, or any other similar protest.

Of course, protests do carry with them some potential for violence and vandalism; again, that is true of labor protests, anti-abortion protests, anti-police protests, protests against drag story hours, protests against speakers who criticize various transgender rights proposals, and more. One could imagine a legal rule that generally forbids all such protests, to prevent such a risk, or allows them to be shut down whenever the police get any indication of any risk of violence. But that is certainly not the rule that has developed in the U.S. under the First Amendment. Rather, under American law, such protests have to be allowed and protected so long as they remain peaceful, and can only be stopped when violence does erupt.

Finally, I also appreciate that there are arguments for restricting armed protests—as, for instance, is the law in North Carolina. I also appreciate that there are counterarguments, both based on the First and Second Amendments (and of course under state constitutional provisions, such as Montana's express right to keep and bear arms in self-defense), and based on at least some police departments' occasional apparent unwillingness to protect protesters against criminal attack (see, e.g., here and here). But again that issue isn't raised here, since the Livingston Police Department order forbids all protests (except ones outside City Hall), not all armed protests.

Thanks to Matt Monforton for the pointer.