The next time residents of Durham County, North Carolina, feel the itch to spontaneously express political feelings on public grounds, they’d better hope somebody had the foresight to ask permission two days earlier.
The Durham County Commission opened the new year with a proposal to require 48 hours’ notice before any demonstration on County-owned land. “In order to ensure the safety of all involved in and near demonstrations on County grounds prior notification is required if the group will be 50 or more individuals or has the potential of 50 or more individuals,” the rules before the commission on Tuesday state. “If notification is not given within the stated requirements or if a spontaneous group exceeds 50 individuals, the County Manager or his/her designee may determine that those participating in the demonstration on County grounds are trespassing and may request that participants be removed by law enforcement.”
Activists in the area made headlines in August when they pulled down a statue of a Confederate soldier prominently displayed near a county building. The impromptu demonstration came two days after a white supremacist rally in Charlottesville, Virginia, led to the death of a local anti-racism protester when a rally attendee mowed down dozens of peaceful marchers with his car.
The following week, rumors spread of a Charlottesville-style neo-nazi march on symbols of North Carolina’s slave-state heritage, prompting locals into the streets en masse. After those tumultuous days in August, county sheriff Mike Andrews wrote an open letter urging commissioners to tighten rules for street protests. If the new proposal is approved, it would be the first time Durham has required citizens to seek permits for protests — a common rule, though one which police officials often decline to enforce when an unpermitted assembly is deemed peaceful.
The proposal does not explicitly call for police to forcibly break up unpermitted marches, as Andrews proposed in his letter. But it does include open-ended language signaling cops would be empowered to get aggressive in such circumstances. It says that “all city ordinances and state statutes should apply” to such demonstrations — invoking a category of local rules that would give men like Andrews carte blanche to handle truly spontaneous mass demonstrators however they pleased.
Andrews’ office convinced local prosecutors to pursue felony rioting charges against the protesters who tore down the Confederate statue in August.
The Durham County tussle over how the justice system should react to a First Amendment assembly where property gets damaged offers a small-scale replica of a fight playing out in other venues around the country.
Hundreds of protesters rounded up and arrested on Inauguration Day still face felony charges in a Washington, D.C. court this winter and spring, as federal prosecutors argue that the black-clad marchers are just as guilty of rioting as the individuals within the group who broke shop windows and set trash cans alight. Police were similarly indiscriminate with pepper spray and handcuffs outside a Trump rally in Arizona over the summer, and after a St. Louis police officer was acquitted on homicide charges this fall.
Street protests governed by a mix of old-school nonviolence and new-age anarchist tactics have become a crucial political tool over the past few years. In 2010 and 2011, the Tea Party and Occupy movements revitalized physical expressions of political disaffect. Since then, national politics have been reshaped by a wide range of physical resistance movements from Black Lives Matter protests to the long-running and initially successful Dakota Access Pipeline blockade on Indian land in the Dakotas. More recently, radical leftists united against the resurgent fascist tendencies of the Trump movement have sought to disrupt or prevent public appearances by right-wing hatemongers.
Conservative-minded officials have embraced confrontation in response to the rise in mass mobilization tactics. Some lawmakers have even tried to make it legal for drivers to run down pedestrian protesters who block roads.
Trump gloried in physical confrontations between his supporters and opposing protesters at rallies throughout his 2016 campaign. When his victory prompted mass mobilization in the streets, high-profile conservatives who backed him were quick to discard traditional rhetoric on the importance of dissent in a democracy and instead call for a crackdown.
The backlash isn’t just a cable-news talking point.
Numerous city and state officials sought new restrictions on protester rights across the country in 2017, prompting alarm among civil liberties groups. After citizens flooded airports nationwide in protest of President Donald Trump’s attempts to restrict travel between several majority-Muslim countries and the United States, officials at Denver International Airport announced demonstrators would have to get a permit a week ahead of time for future actions there. Conservatives in Minnesota tried to give cities the power to sue protest organizers to recoup the cost of police overtime pay incurred by street protests.
A few Republicans in Arizona tried to use state law to go after protest organizers using racketeering laws intended to pursue organized crime syndicates. State lawmakers in North Carolina sought new criminal penalties against the “economic terrorism” of even non-violent protests. Through congressional cronies, oil industry lobbyists urged Attorney General Jeff Sessions to treat physical blockades of pipeline construction as domestic terrorism.
Taken together, these various official actions and legal quests signify a dramatic shift in the traditional balance between basic civil rights and authority. The nation’s commitment to human rights recognized in both the U.S. Constitution and international law has rarely looked so shaky.