On May 1st, a few hundred people gathered for a demonstration in Seattle, Washington. The bulk of the protesters were peaceable. A small contingent then broke off from the main group and wrecked havoc on downtown Seattle. The “black bloc” vandalized businesses, a federal courthouse, and private property then shed the black outfit and melted back into the larger peaceful protest. In the wake of the incident, the mayor of Seattle signed an emergency order providing greater authority for the police. As reporter by the LA Times, the order allows police to “confiscate sticks, tire irons, hammers and other implements that might be used for continued destruction.”
While the mayor was absolutely right that the 1st Amendment does not provide any protection for the actions of the ‘black bloc’. What about the rights of the other peaceful protesters? After the violent incidents calmed, marches continued in other parts of Seattle (as well as other cities on the West Coast). However, now police could seize any signs or flags because the sticks used to hold these items could be used as weapons or tools for vandalism.
Did the earlier riotous behavior by a smaller group of protesters (75 out of 300+) provide a clear and present danger for the rest of the traditional May Day protests? Or was the danger more of a bad tendency or clear and probable danger? Did the possibility of further violence justify the infringement? The Court ruled in Cox v. LA (379 US 536 1965) that a peaceful demonstration with language that could incite violence is protected by the 1st Amendment. Here the demonstrations already led to a disruption of the peace and other lawlessness. Does this tip the scale in favor of the state? Even if the state is seizing signs that are clearly political expression?
In all likelihood, the situation in Seattle would fall in favor of the government. The emergency order was issued after violence. The mayor publicly stated that the police would target behavior NOT speech. Seized items included flagpoles sharpened into points, as well as chains, rocks, and smoke bombs. And, the mayor rescinded the emergency authority on May 2nd.
Would the mayor be justified in reinstating the order next year as May Day approaches? There will be marches. It is a tradition in Seattle. Does the violence from this year serve as a compelling interest allowing greater trespass on rights of free expression? Would the emergency order be less viable constitutionally if the Mayor did not rescind it immediately after the event? Would the use of such an order be reasonable during the next ‘Occupy’ event in Seattle? In New York or Los Angeles? As Justice Jackson once noted, “…[E]mergency powers would tend to kindle emergencies.” (Youngstown Sheet and Tube v. Sawyer 343 US 579 1952)