President Donald Trump has made headlines recently for threatening to stop federal funding of “any college, school or university that allows illegal protests.” However, there is no such thing as an “illegal” protest, said an expert on constitutional law at Washington University in St. Louis. The First Amendment explicitly protects the right of peaceable assembly.
“Trump’s threat should chill and enrage anyone who cares about the First Amendment,” said Gregory Magarian, the Thomas and Karole Green Professor of Law.
A protest is a public assembly that seeks to send a message about some political issue, he said. A public assembly of any kind may become unlawful if law enforcement determines that the assembly threatens public order.
“First Amendment protection for the right of peaceable assembly means that law enforcement can’t declare an assembly unlawful without an exceptionally strong reason,” Magarian said. “Moreover, the First Amendment absolutely prohibits law enforcement from declaring an assembly unlawful because of the assembly’s message — because, for example, an assembly happens to be a protest. Shutting down a protest because of its message would blatantly violate the freedom of speech.”
Trump has also threatened to imprison, deport or expel “agitators.”
“The category of ‘agitator’ that Trump threatens with the government’s wrath is even more absurd,” Magarian said. “’Agitator’ is not a legal term of art. Colloquially, an ‘agitator’ is generally someone who makes noise, disrupts the status quo and calls attention to a cause. In other words, ‘agitation’ is a form of free speech. Trump is literally threatening to imprison, deport and expel people for speaking.”
Why would Trump deem a protest illegal? “Presumably because the protest expresses a view to which Trump objects — most obviously, criticism of Trump himself,” Magarian said. “This, after all, is the same president who wants courts to weaken the First Amendment doctrine that protects us from civil liability for criticizing government officials.
“The First Amendment’s most important function is to protect criticism of government officials and policies. If we abandon that protection, then our rights of free speech and peaceable assembly mean nothing,” Magarian added. “Trump has declared war on the First Amendment. Anyone who cares about constitutional democracy must stand ready to fight for our rights.”
