The Washington PostDemocracy Dies in Darkness

Trump’s crackdown in Portland is an attack on free speech

Using federal law enforcement to crush protests in Portland misunderstands the First Amendment

Hundreds of Black Lives Matter protesters hold their phones aloft on Monday in Portland, Ore. (Noah Berger/AP)

On Monday, President Trump announced plans to deploy DHS agents in Chicago as well as cities where protests against police brutality continue — Portland, Ore.; Philadelphia; New York, and Oakland, Calif. — all cities he characterized as run by “the radical left.” The president called the situation in these cities “anarchic” and asserted federal agents need to be on the streets to restore order. This authority, the acting head of DHS argued, grants federal officials broad authority to deploy in cities against local officials’ wishes.

These actions raise many political and legal questions. Among these are questions about freedom of speech and use of the streets, or whether protesters have a right to occupy those streets. The federal government appears to believe they do not, moving to forcibly remove them in the name of public order. This is, in many ways, a clash over the meaning and extent of the public forum.

More than 80 years ago, faced with local officials who were abusing their power to suppress citizen speech, the Supreme Court created the public forum, designating city streets and parks as venues for citizen expression. At this moment, when the question of who has the authority to occupy the streets is again at issue, it is worth revisiting how and why the courts felt the need to define city streets and parks as the people’s podium. Revisiting this history highlights the unflattering differences between the political and legal commitments to freedom of speech in the late 1930s and 1940s and today.

Today, we understand the streets to be public forums, venues that citizens can use for expressive purposes (with some limits on time, place and manner for this expression). But this was not always so. The courts did not in fact recognize the right of citizens to gather and speak in public parks and streets until the late 1930s. Before, officials — at the time it was local rather than federal officials — claimed broad authority to act as censors, barring assemblies and individual speech that they felt might harm public order, or that they simply thought were too radical.

Most famously, many of these officials barred socialists, anarchists and unions from holding public meetings, distributing literature or displaying red flags.

Organizations like the International Workers of the World, or IWW, worked in the 1910s and 1920s to publicize the injustices of the economic and political order of the day. They and other labor and socialist organizations pointed to the inequalities wrought by industrialization and policies that favored the consolidation of wealth in the hands of a few and punished the poor, immigrants and black Americans. But when they assembled in the streets to do this work, they were frequently jailed.

The IWW attempted to use these confrontations to draw even more attention and sympathy to their cause. However, in most cities and courts public order continued to outweigh the civil liberties of these dissenters.

This changed in 1939, when the Supreme Court adopted a broader interpretation of the First Amendment — one that prioritized civil liberties. One of the landmark cases in this transformation was Hague v. CIO. The mayor of Jersey City, Frank “Boss” Hague, had sought to rid his city of unions to attract business owners. When organizers (the CIO) came to town in 1937 to distribute literature and hold a public meeting to organize Jersey City workers, they were arrested or forcibly escorted from town. The CIO took the city to court and, in the end, the Supreme Court declared the city streets and parks were venues for the advocacy and assembly of the people (granting that such assemblies could be regulated or restrained in the name of public convenience or safety).

Thus was born the legal idea of the public forum, as a space akin to the proverbial town halls of early America open to public debate, dialogue and advocacy.

There were many reasons for the court’s decision in Hague v. CIO. Among them were concerns about power and advocacy in a rapidly changing media landscape. In the 1930s, newspaper and radio station ownership were consolidated into the hands of a few through networks, or “chains.” By the late 1930s, 40 percent of local newspapers and 50 percent of radio stations were owned or operated as part of a chain.

In the face of this consolidation, and concerns about the ability of a few people and organizations to control what could be said through these privately owned channels, some policymakers sought to create alternative channels for marginalized voices (mainly, labor). As legal historian Samantha Barba has explained, the judges and justices deciding the early cases that established public forum law, discussed the public parks and streets as alternate “platforms” for the speech of “the workingman.”

So, the right to use the streets was born in part out of a recognition that the privately owned channels of public address were not open to all. In cases like Hague v. CIO, the courts sought to redress what some judges saw as the systematic exclusion of certain left-leaning perspectives and arguments from public debates by opening up new channels for citizen speech. They envisioned this push as an attempt to address the negative consequences of the rise of commercial mass media and to create supplementary platforms for citizen advocacy and agitation.

Workers and Jehovah’s Witnesses both took advantage of this new legal disposition. Workers found new legal supports for strikes and picketing, with the stronger protections for marching and meeting in the streets. Jehovah’s Witnesses now had legal support in their efforts to proselytize in the public streets. These precedents enabled many civil rights and antiwar demonstrations to take place in the 1960s.

Today, people in the streets are expressing outrage over deadly violence and racial injustice that has allowed the taking of black lives. But one of the reasons protesters have taken to the streets parallel those of labor in the 1930s: the stifling of long-standing complaints about unequal treatment by law enforcement and the inability to voice these complaints through a media controlled by relatively few players. The problem of systemic violence in black communities has not been adequately amplified by media outlets — yet the rise of social media enabled activists to work around the media to bring videos of this violence and make it visible to many white Americans.

The use of the streets to publicize and protest police violence is exactly what the public forum was crafted for: as a venue for the voices of those who are structurally denied access from the dominant media of the day. The attacks on and detention of these protesters are exactly the sort of government persecution that the First Amendment is designed to prevent.