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  • Rob Werking

Peacefully Assemble To Promote Unpopular Views

Back in 1961 Russia had completed the wall separating East and West Berlin and the Cuban Exiles effort to liberate Cuba failed in the "Bay of Pigs." The space race was on and Russia won by putting Cosmonaut Yury Gagarin into space before the United States was able to send Astronaut Alan Shepard.

It would be three (3) year before the Civil Rights Act of 1964 would be enacted and in 1961 the Civil Rights Movement was expanding with Dr. Martin Luther King spending time in Albany, New York. The Freedom Riders traveled from bus in Washington D.C. to the Deep South to protest segregation. One year later, James Meredith becomes the first African American to register for classes at the University of Mississippi. Governor Ross Barnett ordered state troopers to prevent Mr. Meredith from entering the campus which required President John Kennedy to send in the National Guard.

In Louisiana it was against the law for persons to assemble and obstruct public streets and sidewalks. Additionally, it was a breach of the public peace to "agitate, to arouse from a state of repose, to molest, to interrupt, to hinder or disquiet" the peaceful enjoyment of others. Several African American students (as many as 2000) in Baton Rouge were arrested for protesting segregation The Rev. Elton Cox led a group of protesters to gather (assemble) and march to the town courthouse and jail to sing and chant in support of the students who were in the jail attached to the courthouse. The group marched to the courthouse and were lined up on the sidewalk in front of the building. When Rev. Cox spoke he requested the student demonstrators to continue non-violent protests such as sitting at the local lunch counter. Needless to say, the local sheriff immediately shut the protest down and authorized the use of tear gas to disperse the crowds. No African Americans were arrested.

The following day, Rev. Cox was arrested for breach of the public peace and for obstructing the public way (sidewalk). He was subsequently prosecuted and convicted the charges.

Four years later (1965) the case was appealed to the US Supreme Court. The Supreme Court found the statute declaring any type of conduct which caused agitation or aroused persons was unconstitutional. Speech necessarily "invites dispute" and therefore the ordinance prohibited conduct protected by the 1st Amendment. Additionally, the Court found that the state allows for other types of conduct on the public ways such as parades. The state - the government - has allowed the streets and sidewalks to be used for assemblies and the government is prohibited from being allowed to pick and choose which assemblies would be allowed based on the content of the message the assembly desires to convey.

Of note, the government argued that assemblies of persons protesting anything is "inherently dangerous" even if the group is peaceful and non-violent. This argument was rejected by the Court. Allowing the definition of breach of the peace as including speech which may be viewed as "inherently dangerous" would allow persons to be punished for unpopular speech which would undermine the very protections found in the 1st Amendment.

Imagine in 1961, speech related to racial equality was deemed to be "unpopular" or the type of speech that was deemed dangerous. Once again, the Supreme Court emphasized that assemblies and speech are protected even if the majority of persons disagree with the message. Later the Court applied this same type of review to the government denying permits to Nazi or white supremacist parades. We may not like this type of speech but it must - MUST - be allowed in a free society. Unfortunately, we see today that certain segments of society desire the government to prohibit whatever anyone suggests is "hate speech."

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Robert "Rob" Werking was named a Colorado Super Laywer in Criminal Defense once again in 2021. This honor or distinction is based on votes by real attorneys practicing in the State of Colorado.


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