When the Right to Protest is Not Created Equal

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Shelby Moylan

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Shelby Sternberg is a 3L at the University of Kansas. She earned her Bachelor of Journalism degree from the University of Missouri. Shelby is interested in corporate law, especially work in mergers and acquisitions, and private equity. In her limited free time, Shelby likes to read non-legal books.

By now, everyone has seen coverage of the riot at the Capitol on January 6, 2021.  The largely ceremonial certification of election results became violent when protestors-turned-rioters broke into the Capitol building.  They overturned barricades, smashed windows, and attacked members of the Capitol Police to get inside the building.[1]  Once inside, they searched for members of Congress, breaking into offices, stealing and destroying historical items, and eventually gaining entry to the Senate Chamber.[2]  Videos and photos show just how close the mob came to entering the Senate Chamber with Senators still inside.[3]

As the events of the day began to settle, some people compared the violent mob with the Black Lives Matter protests during the summer of 2020.  But two major differences existed: the responses from police and Donald Trump.

There seemed to be little initial resistance from the police as the mob edged closer to the Capitol building.[4]  This was in stark contrast with many of the scenes at Black Lives Matter protests—rubber bullets, tear gas, and extreme force were often used.[5]  

And the president himself had very different messages for the two groups.  For those protesting the murder of George Floyd he tweeted, “[W]hen the looting starts, the shooting starts.”[6]  After extreme pressure to speak out as the Capitol riots got out of control, he addressed the rioters by saying: “We love you. You’re very special. . . but you have to go home.”[7]

Some protestors and commentators also wildly misquoted what the right to protest means.  The First Amendment of the Constitution reads in part, “Congress shall make no law. . . abridging the. . . right of the people peaceably to assemble . . . .”[8]  This is not an unlimited right to have violent “protests” at any place, at any time.  According to the American Civil Liberties Union, protests in front of government buildings are allowed “as long as you are not blocking access to the government building or interfering with other purposes the property was designed for.”[9]  However, police may break up a gathering where “there is a clear and present danger of riot, disorder, interference with traffic, or other immediate threat to public safety.”[10]

The Capitol riot created a very tangible divide; it showed that the right to protest applies differently to different groups.

[1]  Lauren Leatherby, Arielle Ray, Anjali Singhvi, Christiaan Triebert, Derek Watkins, & Haley Willis, How a Presidential Rally Turned Into a Capitol Rampage, N.Y. Times (Jan. 12, 2021), https://www.nytimes.com/interactive/2021/01/12/us/capitol-mob-timeline.html.

[2]  Id.; Chris Cameron, Prosecutors Mull Charges for Theft of National Security Information After Laptops and Documents are Stolen in Capitol Siege, N.Y. Times (Jan. 10, 2021), https://www.nytimes.com/2021/01/10/us/politics/stolen-items-prosecutors-charges.html.

[3] Id.

[4]  Leila Fadel, ‘Now The World Gets To See The Difference’: BLM Protesters on the Capitol Attack, NPR (Jan. 9, 2021, 1:53 PM), https://www.npr.org/2021/01/09/955221274/now-the-world-gets-to-see-the-difference-blm-protesters-on-the-capitol-attack.

[5]  Id.

[6]  Barbara Sprunt, The History Behind ‘When the Looting Starts, the Shooting Starts’, NPR (May 29, 2020, 1:13 PM), https://www.npr.org/2020/05/29/864818368/the-history-behind-when-the-looting-starts-the-shooting-starts.

[7]  Fadel, supra note 4.

[8]  U.S. Const. amend I.

[9]  Know Your Rights, ACLU, https://www.aclu.org/know-your-rights/protesters-rights/.

[10]  Id.

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