In an essay for the Federalist, JWI founder and director Professor Hadley Arkes explores the Court’s approach to demonstrations under the First and Fourteenth Amendments. He examines how Supreme Court justices have regarded with concern the right of protestors to demonstrate in particular locations, such as outside the Supreme Court while trials are underway. Justices Arthur Goldberg and Antonin Scalia alike feared that large demonstrations could influence decisions through a show of force. Professor Arkes concludes by looking at the nature of sedition as a legal concept, and the media’s double standard on recent riots.
Some excerpts from the piece:
“A mass gathering in the street does not provide a format for discussion, nor is it a medium for conveying a substantive argument. The very point of it is make an impression on the authorities through the sheer force of numbers, to suggest wide support for the movement and perhaps political costs for resisting it.”
“Yet Justice Antonin Scalia sounded a note of caution about the crowds of protestors, on either side, massing outside the Supreme Court. He deeply shared the understanding of the pro-life marchers, but could not put out of mind the meaning that must always attach to demonstrations: the hope that the decisions made by legislators and judges may be changed for the good by the massing of large numbers of earnest people with a burning concern.”
“In the curious world of the media, it didn’t count as sedition when the federal courthouse was attacked in Portland, Ore. But even worse, they saw no trace of sedition or civic destruction when “protestors” in Portland, Minneapolis, Chicago, and Kenosha focused their assaults on small private businesses, destroying the livelihoods and savings of ordinary people. Apparently the thugs in the cities were lesser offenders than the thugs at the Capitol, for they were clever enough to visit their assaults on people who bore no responsibility for the wrongs they were protesting.”
Read the full essay here