Montana Town Forbids All Protests (Except at City Hall), Because of Planned Protests of “Drag Story Hour”

From a Livingston (Montana) Police Division order, posted by the Livingston Enterprise (Sean Batura):

Whereas, an area enterprise is presenting a “drag story hour” hosted by the Livingston Pleasure Coalition;

Whereas, people in drag studying tales to youngsters is a delicate concern in immediately’s political local weather and has garnered nationwide consideration;

Whereas, The Livingston Police Division has acquired credible data of people planning to protest the “drag story hour” together with teams who’re planning to be armed with firearms;

Whereas, the first perform of the Livingston Police Division is to make sure the protection of the residents of the group, protect the peace, and mitigate site visitors points;

Whereas, lndividuals have the constitutionally protected proper to peacefully assemble and protest;

Whereas, extraordinary measures are required to guard the general public well being, security and welfare of the Metropolis’s residents;

Whereas, United States Supreme Court docket Case—United States v. Grace, 461 US 171 (1983) has established the authority of presidency to implement cheap time, place, and method of protests;

Now, due to this fact; by direct order of the Metropolis Supervisor, all protests occurring on Might 20, 2023, between the hours of 0800 and 1700 hours shall be performed within the car parking zone of Metropolis Corridor situated at 220 E. Park Avenue, Livingston Montana. This Livingston Police Division Normal Order is accredited and issued on this 18th day of Might, 2023. All these present in violation of this order shall be topic to prosecution by the Metropolis of Livingston.

However that is unconstitutional. The best to talk contains the suitable to talk exterior an institution that one is protesting, whether or not it is an employer that is being picketed, a fur retailer, an abortion clinic, or anything. Certainly, the case that the Police Division cites, U.S. v. Grace, upheld the suitable to protest on a metropolis sidewalk exterior the Supreme Court docket. The federal government typically cannot require protesters to protest elsewhere (for example, 2½ blocks away, which appears to be the space between the Metropolis Corridor car parking zone and the bookstore).

In extraordinarily uncommon circumstances, for example when huge protests are anticipated occasionally of a political conference, the federal government could possibly exclude protests from a slim zone exterior the conference, see, e.g., Marcavage v. Metropolis of N.Y. (second Cir. 2012):

As many as 50,000 folks have been anticipated to attend the four-day Conference. The NYPD anticipated that there could be a quantity of protest exercise not seen in New York Metropolis in many years, together with probably tons of of 1000’s of protesters all through the town.

The [Madison Square] Backyard [where the convention was held] sits atop Pennsylvania Station (“Penn Station”), one of many transportation hubs of New York Metropolis. Roughly 1,300 trains and 600,000 riders cross by means of Penn Station every day. The neighborhood is ordinarily congested by vehicular and pedestrian site visitors; a significant occasion on the Backyard can convey 1000’s of further pedestrians.

However this example (which in any occasion concerned a “small no-demonstration zone on a two-block strip of Seventh Avenue,” not a categorical ban on all protesting in a city with one slim permitted protest area) is much faraway from what appears more likely to be a small protest concentrating on a small occasion. And whereas the Livingston Police Division probably has fewer officers than the NYPD, their job is to guard each the occasion attendees and the protesters—once more, simply as if it have been a labor protest exterior a manufacturing facility, or another related protest.

After all, protests do carry with them some potential for violence and vandalism; once more, that’s true of labor protests, anti-abortion protests, anti-police protests, protests in opposition to drag story hours, protests in opposition to audio system who criticize varied transgender rights proposals, and extra. One might think about a authorized rule that typically forbids all such protests, to stop such a danger, or permits them to be shut down at any time when the police get any indication of any danger of violence. However that’s actually not the rule that has developed within the U.S. underneath the First Modification. Fairly, underneath American regulation, such protests need to be allowed and guarded as long as they continue to be peaceable, and might solely be stopped when violence does erupt.

Lastly, I additionally admire that there are arguments for proscribing armed protests—as, for example, is the regulation in North Carolina. I additionally admire that there are counterarguments, each based mostly on the First and Second Amendments (and naturally underneath state constitutional provisions, resembling Montana’s specific proper to maintain and bear arms in self-defense), and based mostly on not less than some police departments’ occasional obvious unwillingness to guard protesters in opposition to prison assault (see, e.g., right here and right here). However once more that concern is not raised right here, because the Livingston Police Division order forbids all protests (besides ones exterior Metropolis Corridor), not all armed protests.

Due to Matt Monforton for the pointer.