CAIN: Democratic Dialogue: Politics in Public - Freedom of Assembly and the right to Protest (Report No. 8)

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Politics in Public

Freedom of Assembly and the Right to Protest

United States of America

The New York St Patrick’s Day parade is the oldest such event in the USA. The first parade was recorded in 1762 when Irish soldiers serving under King George marched through the commercial districts of the town. Organisation of the event was taken up by the Ancient Order of Hibernians two years after its formation in 1836, since when the Hibernians have continued to organise the annual event. The parade has flourished over the past one hundred and fifty years since that rime and is the most prominent parade in America (Kelton 1985). The importance of freedom of assembly, of the right to parade, to protest and to demonstrate was recognised by the newly independent United States as a fundamental feature of a democratic society. These rights were set out and guaranteed to all in the First Amendment to the Constitution in 1791.

During the nineteenth century holding parades was an important facet of social life for many of the numerous ethnic and immigrant groups in America. The practice of parading was widely used to establish or consolidate communal identity, in displays of collective strength and to exert influence on local politics (Davis 1986). St Patrick’s Day parades have been established extensively by the Irish community and the number of annual celebrations continues to grow. There are now over 200 such parades each year across the USA, some in communities with only the most tenuous of Irish connections. In many places the event has lost any political significance it might once have had and has become little more than a civic festival in which firemen and policemen march alongside high school bands and local traders. They are celebrations of local identity, rather than anything specifically Irish.

Nevertheless, holding parades and demonstrations remains a fundamental facet of American political life. Although the principle of the right to demonstrate was established under the Constitution, the limits of such rights and the ways and means by which they may be exercised in practice have been widely challenged through the courts. In the 1960s organising marches and demonstrations was a basic part of both the black civil rights and the anti-Vietnam war campaigns, while more recently neo-Nazi and Gay groups have sought to overturn restrictions imposed by the civil authorities by appealing to the Supreme Court.

Thus although demonstrating is accepted as a fundamental Constitutional right, interpreting how such rights are to be exercised in practice and determining where the limits of such rights lie has always been contingent on the wider political climate. The American ideal is in many ways an extremely liberal one. However, as long as some form of public assembly is allowed, there are still a number of practical constraints that can be imposed by the police or by local authorities to limit people’s right to demonstrate how and where they want. The balance between competing rights may be tilted in favour of demonstrators, but rights are still contested and the tensions still remain.

Constitutional Rights

Freedom of assembly and the right to demonstrate are guaranteed under the First Amendment of the American Constitution. This states that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In interpreting this Amendment the Supreme Court has been particularly concerned to ensure that the rights of dissenters, protesters and those that challenge the status quo are protected. As such, generalised legal prohibitions on forms of demonstration have been declared unconstitutional when challenged. The Court has argued that any abuse of the right of assembly should be dealt with by criminal prosecution rather than by prior restraint. Official control of any form of freedom of expression is viewed with suspicion, but at the same time freedom of expression must apply equally to all sections of society.

It has therefore been felt that there should be special protection for the rights of those who wish to be provocative or challenging to dominant or widely accepted ideas. Many of the key cases that have been fought through the courts have been aimed at extending the rights of expression and assembly and reducing the power of the authorities to impose restrictions. This has meant that the Courts have overturned restrictions on neo-Nazis marching through a Jewish suburb of Chicago, have protected the rights of the Klu Klux Klan to demonstrate and have affirmed that it is acceptable to deface or to burn the American flag as a political protest.

As a result of such judgements it is accepted that the government does not have the power to restrict forms of public expression simply because of the message, the ideas, the subject matter or the content that is being conveyed (Gora et al 1991:5-6). Nevertheless the authorities do have the power to restrict assemblies if they are likely to result in serious disruption to public order, the ‘clear and present danger’ test. In such cases the actions of the demonstrators must be both directed to inciting lawless action and likely to produce such action. The police can then control or disperse the demonstrators.

The right to demonstrate extends also to the right to counter-demonstrate, but does not extend to the right of a hostile audience to prevent or restrict the holding of a legal demonstration. Of particular significance is the understanding that a parade or demonstration should not be banned or rerouted or restricted in any way simply because it might cause offence to people either on the route or in the general area. Working from the belief that political expression will very often be provocative, the Court has determined that in such instances the police have a primary responsibility to protect the demonstrators from the hostile audience. While this has often meant that right wing and racist groups have been treated in a somewhat liberal manner, these arguments were also used in the 1960s by civil rights groups and anti-Vietnam War demonstrators to insist that their demonstrations should be protected.

The underlying principles were most clearly elaborated in a 1978 judgement known as the Skokie case. The National Socialist Party of America were effectively prevented from holding a march and rally through Skokie, a predominately Jewish suburb of Chicago, by the local authorities. The National Socialist Party appealed and the Supreme Court ruled that the restrictions were unconstitutional and the march and rally should be allowed. The Court stated that even though displays of the Swastika would be deeply offensive to many of the residents, this did not justify restricting the right of free speech (Gora et al 1991:81-2). Nevertheless although the Court determined that the neo-Nazi group had the right to hold their rally, this right was never actually exercised. A large crowd of protesters gathered in the town centre on the day of the proposed march and the rally was held at a non-contentious location.

This example therefore also illustrates something of the pragmatism that underlies the American system. Although the Skokie case is held as an example of the extent to which provocative protests are given legal sanction in America, less recognition is ever given to the fact that the group were unable to exercise their right to demonstrate because of the opposition that the proposed event generated. In such situations the police do have an obligation to protect legally held demonstrations, but in practice this is not always possible. In such cases the police ultimately have to make decisions based on concern for public order and they can not necessarily guarantee the safety of provocative demonstrators.


The underlying thrust of the numerous interpretations of the Constitutional implications of local laws, state laws and police decisions is that the Constitution demands that freedom of assembly should be protected and facilitated by the authorities if it is held in a peaceful manner and in a traditional public forum. A public forum is defined as property that is owned by the government and open to the public, in practice this normally means most streets, sidewalks and parks. However, even this is never such an unconstrained right as might be suggested.

The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general order (Hague v CIO, 307 US 496, 515-16, 1939).

Exercising the right to demonstrate therefore has to be balanced with the rights of other sections of the community, and public assemblies can be limited in some ways providing that the restrictions are content neutral’, that is they are not imposed to censor the expression of ideas. As one member of the New York Police Department told us ‘there is a Constitutional right to demonstrate and to protest, but there are still questions to be decided where this right ends and where the wider public rights begin’.

The Supreme Court has formulated a doctrine to guide such decision-making processes known as the ‘time, place and manner doctrine’. This stipulates that while people have a right to demonstrate, the authorities have to be aware of the broader picture. They therefore do have the right to impose ‘reasonable’ restrictions on the ‘time, place and manner’ of such public events in order to prevent them from unreasonably interfering with nearby activities and individuals’ (Gora et al 1991:165-6). Having the right to demonstrate does not mean that one has the right to demonstrate where one will, when one will or how one will without due regard for one’s fellow citizens.


The police have a responsibility to facilitate public assemblies, except if there is a serious threat to public order, and are not allowed to impose restraints on the content of parades that might be interpreted as any kind of censorship. However, as we have seen, the ‘rime, place and manner’ doctrine allows them some degree of flexibility over the form, the style and the scale of parades and demonstrations. Policing structures and legal systems can be very decentralised and localised in America (Brewer et al 1996) and therefore it can be difficult to make broad generalisations over the means of administrating and regulating public assemblies, however the need to obtain a permit for a demonstration is widespread.

In New York organisers are required apply to the appropriate department of the NYPD at least 36 hours in advance, but often longer notice is given to facilitate the police. Normally obtaining a permit is a formality, but the police check to see if there are any potential problems, such as other events around the same rime, before one is issued. If there are any concerns, then they will negotiate with the organisers to try to reach an agreement before they issue a permit.

In Boston organisers must give at least 48 hours notice to the City Transportation Department in the Mayor’s office. Requests for a permit are considered by representatives of the police, as well as those of the parks and transport authorities. As with New York, organisers would be expected to negotiate over any concerns the authorities might have, but at the same time the police felt that they were limited in their ability to restrict the right to demonstrate.

The most widespread concern that demonstrations give to the authorities is disruption that may be caused to the free flow of traffic or to commercial activities. Although some disruption is an expected product of the demonstration, the police try to minimise it. Parades therefore may be kept away from key locations, prohibited during rush hours or after dark, or restricted to the weekends. The New York Police Department maintains an informal prohibition on demonstrations past the United Nations building on First Avenue and an arbitrary limit of fifteen parades each year on the central thoroughfare of Fifth Avenue, although a number of others are held on adjacent streets. The overwhelming majority of parades in Manhattan are also restricted to weekends. Similarly the Boston Police Department has tried to restrict parades to the Downtown commercial heart of the city and prefers them to be held at the weekend. More recently they have had to respond to the concerns of local commercial and residential interests to limit the number of parades in this area.

Usually any proposed changes to the organiser’s plans are subject to negotiation, but the police can in practice impose constraints if they so wish. Often the organisers accept such constraints since it is usually the demonstration itself which is important rather than the route that is to be taken or the timing of the event. However sometimes restrictions are considered unacceptable, in which case the organisers have three options. They can try to mount an illegal demonstration, they can postpone the event and continue negotiating, or they can accept the restrictions. Whichever option is taken they also have the right to appeal through the courts. However because of the time that the appeal procedure can take, several years if it goes to the Supreme Court, this does not resolve the initial problem.

In most disputed cases a compromise agreement is reached, but on occasion the demonstrators ignore the police restrictions and hold an illegal march or rally. In such cases the police claim that they would make a pragmatic response to the situation. If they could control the demonstrators, then they would do so; but if the greater threat to public order would be to confront an illegal demonstration, then they would facilitate the event while retaining control of the streets. This has happened recently in New York when dealing with some of the radical Gay groups who had been restricted from holding a parade past the main Roman Catholic cathedral on Fifth Avenue. When a number of demonstrators insisted they would march their preferred route and ignore the restrictions, the police accepted that it was better to allow an illegal march through Manhattan rather than try to prevent it and be confronted with large numbers of angry protesters (McCarthy and McPhail forthcoming).

The police argue that in such situations their aim is to control the situation with minimal recourse to an aggressive or violent response. Nevertheless they do have a variety of equipment that they use for crowd control. For most demonstrations officers would be dressed in standard uniform, riot police would be deployed nearby but out of sight, while heavy wooden barriers would be used to restrict movement and close off streets. Individual officers have helmets, masks, shields and batons and are equipped with small pepper sprays that are for use at close quarters. Sergeants also have access to a larger pepper spray that can be used to cover a wider area. Water canon and hoses are available, but have not been required in recent years. Plastic bullets are not used by the NYPD but when asked how they would react to being attacked by petrol bombs, a Task Force officer said without hesitation we would use live ammunition’.

Riot police have been brought in to control violent crowds on numerous occasions since the rise of mass demonstrations of the 1960s. However, the majority of such interventions have been in response to rioting that has resulted from more generalised political or racial tensions, rather than being sparked by a legal march or rally (McPhail et al forthcoming). Most demonstrations and protests have been peaceful.

Counter Demonstrations

The police have a similar responsibility to facilitate protests and counter demonstrations as they do towards other forms of freedom of assembly, although not to the extent that a counter demonstration could impede the original event. In the case of protests the police are guided by the doctrine of ‘sight and sound’. This indicates that protesters should be permitted to hold their protest within sight and sound of the object of their protests. Again, as it is considered acceptable to use amplifiers at protest, this can be liberally interpreted to ensure that opposing groups are kept well apart.

In practice protests or counter demonstrations can be somewhat ritualised affairs at which both sides play by relatively formal and mutually acknowledged rules. In New York there has been an ongoing protest by the Irish Lesbian and Gay Group (ILGO) over the refusal by the AOH to allow them to take part in the St Patrick’s Day parade. The ILGO protest in 1997 took place near to the starting point of the Hibernian parade early in the morning of St Patrick’s Day. The protesters began by walking up and down with placards on the pavement but eventually a small group of about thirty five demonstrators broke through the police cordon and blocked Fifth Avenue. The police tried to persuade them to leave voluntarily but the demonstrators refused and about half sat down on the street. The police then moved in and systematically arrested all those involved and took them to the police station to be charged. Having made their point to the assembled media, the remaining demonstrators then dispersed.

The majority of the police at the scene, in normal uniform, were concerned with crowd control and the removal of the arrested persons, while members of the Task Force were available as back up but remained out of sight. However the policing operation was significantly more elaborate than it at first appeared for alongside the operational officers were two members of the Community Policing Unit. These officers wore different colour jackets and remained apart from operational matters, their rationale was that ‘we will have to come back tomorrow and pick up the pieces’ and therefore they had an interest in constraining the behaviour of the police as much as that of the protesters. The Community Police officers acted as intermediaries, keeping a line of communication open with the protesters, trying to influence their actions, letting them know what would happen if they broke the law and trying minimise the disruption they might cause. Significantly they were not under the control of the officer in charge of operations, but rather worked directly to the office of the Chief of Police. Therefore, although they might be relatively low ranking officers, if they felt the operation was being badly handled they could communicate their concerns immediately to the highest rank and suggest a change of strategy. In practice the Community Police officers worked with the officer in charge of operational matters to ensure the protest went as peacefully as possible.

As well as the involvement of the Community Police officers, the policing operation was also supervised by members of the NYPD Legal Department. The police lawyers were present to ensure that the operational officers complied with the letter of the law in breaking up the protest and in the manner in which they arrested the demonstrators. In some cases protesters also have legal representation at demonstrations; in such cases both sets of lawyers monitor the proceedings. As with the community police the police lawyers were outside of the normal command structure, and as civilians they could advise the officer commanding the operation without concern for differences of rank.

From the perspective of the police, the operation to control the ILGO protest went according to both schedule and plan. The protest was facilitated but was also dealt with smoothly. Thirty-five people were arrested for blocking the road, about half were released later that day while the remainder spent the night in jail. The parade itself was not disrupted and began on schedule shortly afterwards.

St Patrick’s Day

The St Patrick’s Day parades are the longest established and largest events in both Boston and New York. The Boston parade is a dual anniversary as it marks both St Patrick’s Day and the local celebration of Evacuation Day, when troops loyal to the British crown abandoned the city to George Washington’s forces in 1776. The City Council organised the celebrations until 1947 since when the parade has been run by the South Boston Allied War Veterans’ Association.

As noted above the New York parade has been organised by the Ancient Order of Hibernians since 1838 and because of this longevity has a certain privileged status. The event is considered a ‘grandfather’ parade and as such has an almost sacred status, both in the city and among other St Patrick’s Day parades. Nevertheless this has nor prevented it from adapting to the changing geographical pattern of the city. Over the past one hundred and fifty years the route of the parade has varied regularly as the city has developed, although it has always tried to occupy the commercial heart of the city for the day. The parade has taken a linear route along Fifth Avenue since 1879 although the length of the route has been shortened at least twice since the 1950s (Kelton 198 5:97).

The New York parade is always held on St Patrick’s Day itself regardless of which day of the week it falls upon. Of the fifteen annual parades along Fifth Avenue the only other events allowed to disrupt the commercial life and traffic flow by being held on weekdays are the Columbus Day parade in October and the War Veterans’ Council parade on 11 November. When in 1982 it was suggested that the St Patrick’s Day parade should be moved to a weekend to avoid the disruption to business this provoked considerable opposition and the proposal was swiftly rejected (Kelton 1985:103).

In a similar fashion the pre-eminence of the New York parade has meant that it is the only such parade in the area that is held on the actual anniversary of St Patrick. The other forty-five St Patrick’s Day parades held in New York State each year are held over the weekends preceding and following the anniversary, while the Boston parade is held on the Sunday nearest to March 17th. This means both that the smaller events can attract important figures from the AOH and the Irish community and good quality bands while at the same time the New York parade remains the most important parade. In fact this has led to problems for the AOH as more and more people and bands have wanted to parade through Manhattan and they have been forced to operate a waiting list system for new organisations who wish to take part in the parade. Even so it is felt that the parade has become too big as it now takes five hours to pass any one spot and ways are being considered to reduce the numbers of some groups.

Controlling Alcohol

Today the St Patrick’s Day parades cause few problems for the police apart from concern for traffic flow, but in the 1 970s the consumption of large amounts of alcohol meant that both the Boston and New York parades could become quite wild and even violent events. The organisers were concerned that the parades were losing their reputation as respectable family events and the police were concerned at the excessive drunkenness, street fighting and assaults on their officers.

In the early 1980s new regimes were introduced in both cities to prohibit drinking on the streets in the vicinity of the parade routes. These were preceded by big publicity campaigns warning people that drinking on the streets would no longer be acceptable and all alcohol would be confiscated. Bar owners were also warned of the new regime, while they were not required to close a close eye was kept on any near the route. Many bars now choose to close for the duration of the parade. In New York police officers are deployed for a few blocks surrounding the entire parade route and are empowered to remove alcohol from anyone trying to get to watch the parade. In Boston police accompany a rubbish truck which covers the entire route in advance of the procession and all alcohol is immediately put through the crusher.

Although it took two or three years to be effective, it is felt that the transformation in the nature of both parades has been dramatic. The police are largely happy with the drinking levels and even though over one thousand summons were issued in New York in 1997, feel that they are in control of the situation. The parade organisers are also happier and feel that they now have an event that is family orientated once again. Similar tactics have been applied to a range of other large parades and public celebrations. The police feel that as long as the ground is prepared in advance and people know what to expect, then they will encounter few problems in controlling alcohol consumption.


Although the right to march and to demonstrate was guaranteed under the United States Constitution over two hundred years ago, the limits of such rights have remained open to dispute and subject to re-interpretation. In recent decades the Supreme Court has addressed the issue on many occasions and has continued to deliver judgements that extend peoples rights and limit the powers of the authorities to restrict freedom of assembly. But it is also clear that the ability to exercise one's constitutional rights must be applied equally to all sections of the community. Neither the courts nor the police should discriminate against one group or in favour of another.

The longevity of the Boston and New York St Patrick’s Day parades gives them a certain status as grandfathered events but more recently established communities have also established the right to demonstrate on the major thoroughfares of these cities. The Irish take control of Fifth Avenue on March 17, but they will be followed in the coming months by the Greeks, the Jews, the Puerto Ricans, the Germans and others. In asserting one's rights, one also has to acknowledge the rights of others.

Under the libertarian regime that has evolved in America, the right to demonstrate largely takes precedence over concerns for the sensibilities of those who might be offended or who would object to parades and their associated visual and oral expressions. A recent judgement made it clear that there was a direct and necessary relationship between a parade and the audience.

We use the ‘parade’ to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed a parade’s dependence on watchers is so extreme that if a parade or demonstration receives no media coverage, it may as well not have happened (Hurley v Irish-American Gay Group of Boston, 1155.Ct. 2338, 1993).

This argument also relates back to the points we made earlier about the relationship between a march and the audience. The Supreme Court has indicated that a hostile audience did not have a right to stop a demonstration, but in this judgement it is plain that white an audience may not want or need a parade, the parade always needs an audience, whether hostile or otherwise. As expressive and communicative events parades require an audience to have any meaning. In such situations where the right to demonstrate is given some degree of priority, parity can only be achieved if such principles are applied equally to all sections of society.

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