Chapter 11

Ferguson and the First Amendment

Chad Flanders

I am enormously grateful to the efforts of Joe Welling and Michael Hill, students at Saint Louis University School of Law, who offered numerous substantive and editorial suggestions and saved me from numerous mistakes. John Inazu, Christopher Bradley, Will Baude, and Kim Norwood offered extremely helpful comments on an earlier draft.

Introduction: Wilson-Brown as Metaphor

The release on the same day of the Department of Justice (DOJ) report declining to prosecute Darren Wilson and the DOJ report excoriating the Ferguson Police Department may have obscured the connection between the two documents.¹ One seemed, in rather stark terms, to condemn the whole Ferguson Police Department root and branch, while the other seemed to exonerate completely the actions of one Ferguson police officer, namely Darren Wilson. But if we take a broader view, the contradiction dissipates. While we may never know what exactly happened between Wilson and Brown, the DOJ report on Ferguson’s police department showed that people’s fears about how Brown’s death happened—the “hands up, don’t shoot” narrative, in part²—were in many ways predictable and even justified given the past relationship between the police and the City of Ferguson. What people worried might have happened between Wilson and Brown was going on already and repeatedly in comparatively smaller but still disturbing ways. Relations between people of Ferguson and the police were strained (to put it mildly) and rights were being consistently and routinely violated not as a matter of some “bad apples,” but as a matter of departmental policy. Wilson acted against the background of a style of policing that probably made his resort to deadly force more likely, because tension between the police and citizens in Ferguson was already at a breaking point.³ In other words, we could read off of the Wilson-Brown encounter—and the reaction to it—a larger story about what was happening between the police and the community in Ferguson.

In this essay, I advance a related thesis: that in the police response to the protests after Michael Brown was shot, we could see played out on a wider scale a similar dynamic to that which was present, or at least thought to be present, in the encounter between Wilson and Brown.

In particular, I show that, just like Brown, protesters were told that they were walking in the wrong place and had to move, and that force was used against them as well—and also without warning.⁴ I argue that the police response to the protesters, just like Wilson’s response to Brown, reflected an attitude that saw the police-community relationship as one to be controlled by escalating the use of force rather than one to be managed by negotiating with the community. And I conclude by considering one of the more recent First Amendment lawsuits to emerge from Ferguson, based on a grand juror’s claim that he should be able to speak about his experience on the Wilson grand jury without fear of punishment.⁵ My overall thesis is that everything people thought went wrong between Brown and Wilson did go wrong in the police response to the protesters.

There are limits to the analogy between Michael Brown and the protesters. To take one difference, the protesters were shot at with rubber bullets, not real ones—and no protesters were killed, although some were injured.⁶ But the response to the protesters’ ability to speak did put at risk that thing which is the “lifeblood”⁷ of a well-functioning democracy: speech and the promise that deliberation and discussion will rule rather than arbitrary force.⁸ In what became an endlessly playing loop, the aggressive police response to protesters decrying injustice became an instance of the very injustice that the protesters were decrying. A clash between two people in turn became a clash between the police and the people of Ferguson, and what suffered, what kept being put back on its heels, were the First Amendment rights of the people.

I use the following capsule summary of the Brown-Wilson encounter as the outline for the rest of the chapter, to highlight the analogies between the story of Brown and the story of the protesters:

1) A man was told by a police officer to get out of the street, and to walk somewhere else.

2) When the man turned toward the police officer, there was a struggle, and the officer in response used a large amount of force against the man.

3) There was no reliable video of the event, and the police were selective in what they shared with the media.

4) In the days that followed, perceptions differed as to what happened: whether the man was mostly blameless or mostly to blame, and whether the force was excessive or proportional.

5) The deliberations of the grand jury were kept secret, but the prosecutor in a news conference and in subsequent public events got to tell his side of the story.⁹

6) A DOJ report released in March showed that aggressive policing tactics were long a part of Ferguson’s history, and demands were made for reform.¹⁰

1. A Man Was Told by a Police Officer to Get Out of the Street, and to Walk Somewhere Else

The shooting of Michael Brown started with Darren Wilson yelling at Brown to get out of the street.¹¹ In the protests that followed Brown’s death, there were also commands directed at protesters who were on sidewalks or streets that they needed to keep moving, to get out of the way, because they were not where they were supposed to be.¹² Particularly controversial was the so-called “five-second rule,” where protesters could not be in the same place for more than five seconds.¹³ They had to be constantly moving (difficult if you are a protester who is disabled or who has trouble walking), or risk getting arrested.¹⁴ Simply standing still on a public street or sidewalk became a crime.¹⁵

Where exactly the policy to keep moving originated, or what it meant, never became entirely clear. Could protesters walk around in a circle? What if a protester had to tie his or her shoe? Attend to a crying baby in a stroller? Stand in line to use the bathroom? When did the five seconds begin to run in the officer’s mind vis-à-vis the protester’s mind? Was there any place they could stop and protest, or was the five-second rule applicable everywhere in Ferguson? Were there certain times when the policy was not in effect? How fast did they have to “keep moving”? Did it apply to small groups as well as large crowds? Would protesters really be arrested if they didn’t move? Officers did not know the answers to these questions, and it showed: sometimes the rule was enforced, sometimes it wasn’t, and when it was enforced, it seemed to be enforced differently every time.¹⁶

The questions about the exact policy were important, not only as a matter of practicality, but as a matter of compliance with the First Amendment. Two foundational constitutional doctrines were at issue: the public-forum doctrine, and the requirement that laws not be vague—especially when it comes to laws concerning speech. The public-forum doctrine holds that the streets and the sidewalks belong to the people. They are the places, as the Supreme Court recently reaffirmed in McCullen v. Coakley, where people gather to meet, to express themselves, and to make their voices known, and so laws and policies that restrict access to and behavior in public forums are subject to careful scrutiny by courts.¹⁷

Relatedly, laws and policies that regulate people’s ability to speak must be clearly laid out, for two reasons. First, policies have to be clear so that people know how to obey them, and second, policies have to be clear so that the police know how to enforce them. So if a command is hard to follow, that leads to these two obvious problems. People will be confused about what they are supposed to do, and police may have more discretion in applying the law, which they may abuse intentionally or unintentionally.¹⁸

Mustafa Abdullah wasn’t strictly speaking a protester, but he was involved with the protests. He worked for the ACLU, and when he heard that police were telling protesters they couldn’t stand still—even in the daytime, even when there was no violence¹⁹—he got involved. He filed suit against St. Louis County and the Missouri State Highway Patrol seeking an injunction prohibiting the further use of the policy.²⁰ He initially was denied a temporary restraining order (TRO) because a lawyer for the defendants informed the judge that an alternate “protest area” was being set up where people could meet and not be subject to the five-second rule.²¹ What the judge didn’t know at the time was that the protest area probably didn’t exist in any meaningful form,²² at least not until well after the TRO was denied.²³

In the second round, however, Abdullah won. After a day-long hearing that included multiple witnesses, the court issued a preliminary injunction. The court found the policy confusing and nearly random, and held it was unconstitutionally vague.²⁴ What the policy was, Judge Perry concluded, was left up to the moment-to-moment decisions of the officers, and that was no good: protesters couldn’t tell what they would have to do to avoid falling afoul of the policy.²⁵ The policy had neither definiteness nor clarity.

In addition, the judge held that the policy likely violated the First Amendment.²⁶ The streets are open to the people, and while this does not mean that the government can never regulate how and when people use the streets, it does mean that those restrictions have to be reasonable. The keep-moving rule was not reasonable. Under the policy, people couldn’t stand on the sidewalks to protest without risking being arrested. And because suppressing speech, even for a small amount of time, is still a very real harm, the policy had to be stopped.²⁷ In response to the preliminary injunction, the city entered into a consent judgment that enjoined application of the policy.²⁸

2. When the Man Turned toward the Police Officer, There Was a Struggle, and the Officer in Response Used a Large Amount of Force against the Man

After Darren Wilson told Michael Brown to get out of the street—to keep moving—things didn’t proceed peacefully. Instead, there was (most accounts agree) a struggle and a confrontation between the two men.²⁹ Things quickly escalated, and ultimately Wilson shot multiple times at Brown, killing him. The question, in the Wilson case, turned from one about police keeping people out of the streets for jaywalking to one about the justifiability of using force against an unarmed person, force that was ultimately deadly. In the aftermath of Brown’s death, with massive displays of force by the police against protesters—SWAT teams, armored vehicles, rifles, rubber bullets, tear gas, pepper spray—the question too turned from one about keeping people off the street to one about excessive force. Again, things escalated quickly, and the First Amendment rights of the protesters were in the balance.

The injunction against the five-second rule was granted, in part, because it involved the use of police power to threaten innocent and constitutionally protected activity: standing still and protesting. Police couldn’t and shouldn’t be able to tell people to keep moving when there is no real danger to their standing still. Even worse, the police justified the policy, at least initially, as necessary to avoid people “unlawfully assembling” to riot or commit other acts of violence.³⁰ But police were telling people to keep moving even when they had no evidence that the people assembling were doing it for any unlawful purpose. The police seemed to be anticipating violence that wasn’t there.

There was eventually some violence mixed in with the protests in Ferguson.³¹ And even the judge in the Abdullah case acknowledged that the police had a legitimate interest in maintaining order and protecting the public safety. She wrote, “Citizens who wish to gather in the wake of Michael Brown’s tragic death have a constitutional right to do so, but they do not have the right to endanger lives of police officers or other citizens.”³² But there was also violence mixed in with the policing in Ferguson.³³ Things had not only escalated, they had broken down. Again, there were allegations of excessive force, just as there were in regard to the shooting of Brown, except this time it was on a larger scale: it was not a gun against a single person—it was armored vehicles and chemical agents used against a crowd. The images of a quasi-military takeover of Ferguson have now become as indelible as the image of Michael Brown’s slain body on the street.

Tear gas was used against people in the protests immediately following Brown’s death, and also after the announcement of the grand jury’s decision in November. On December 10, protesters filed a lawsuit against the Unified Command,³⁴ claiming violations of the protesters’ First Amendment rights.³⁵ The lawsuit alleged, in part, that officers acting under the Unified Command were using tear gas and pepper spray, and shooting protesters with “so-called ‘less-than-lethal projectiles.’”³⁶ Regarding the use of tear gas, the protesters’ point was simple: tear gas should not be used except as a last resort, and when it is used, there should be a clear warning given.³⁷ This was also an echo of the vagueness claim in the earlier lawsuit by Abdullah: if you are going to restrain protesters, at least make it clear what the rules are, and enforce them fairly. Anything less chills expression and clamps down on the right to protest in a public forum protected by the First Amendment.

Brittany Ferrell, Steven Hoffman, and Kira Hudson, all named plaintiffs in the lawsuit against the Unified Command, were near a coffeehouse that was remaining open past hours as a place of safety and rest for protesters.³⁸ In the lawsuit, they described what they saw in the late evening of November 24 and the early morning of November 25:

Suddenly, Plaintiffs Ferrell, Banks and Hoffman observed police officers controlled by the Defendants speed north on Grand towards Arsenal in a black armored personnel carrier vehicle which was fitted with a turret type attachment for the firing of tear gas. The vehicle rapidly approached without siren or other warning device. Without notice or warning, the vehicle began firing tear gas canisters at the unsuspecting Plaintiffs and others who were gathered in and around the area in front of MoKaBe’s Coffeehouse and near the corner of Grand and Arsenal. Because there was no announcement or dispersal order prior to the administration of gas, Plaintiffs Ferrell and Banks were unable to put on adequate protective gear to escape the effects of the gas.³⁹

The plaintiffs won a TRO against the police.⁴⁰ The judge agreed that the police had been authorized to use tear gas, but that they were using it against those who were not engaged in any violent activity and that they were using it without warning. In a striking passage, the judge wrote that the protesters’ First Amendment rights of speech and assembly were being “encumbered” by a “law enforcement response that would be used if a crime were being committed.”⁴¹ That is, by their use of tear gas, the police were treating all protesters as presumptively criminal. If the police were going to use tear gas, the judge ordered, they would have to give a warning—a clear, unambiguous warning.⁴² And they could not use tear gas merely to frighten, or punish, those who were exercising their constitutional rights.⁴³

It was another victory for the First Amendment—the parties reached a settlement limiting police use of tear gas—but again, it came late. And this time, the victory was not against a haphazard policy that was stitched together on the fly, as the five-second rule possibly was.⁴⁴ Rather, this response came not only in the immediate aftermath of the Brown shooting, but also after the release of the grand jury’s decision. It was the result of forethought and planning.

3. There Was No Reliable Video of the Event, and the Police Early on Were Selective in What They Shared with the Media

The public learned very little about the Brown shooting at first. The Ferguson Police Department was, to put it generously, reticent about the details of the shooting—perhaps suggesting that they had something to hide. They initially said that they would not identify the officer who had shot Brown, out of fears for his safety; a very long and tense seven days later they released the officer’s name.⁴⁵ Rumors were floated and details leaked about what happened at the police vehicle and the extent of Darren Wilson’s injury, some of which would turn out to be false.⁴⁶ No one captured video of the struggle or the shooting, although a phone happened to capture audio of the shots being fired.⁴⁷ The only video released by the Ferguson police was a grainy videorecording of Michael Brown earlier in the day, allegedly stealing from a liquor store.⁴⁸ This video was released simultaneously with the officer’s name to the public and despite the chief of police’s admission that Officer Wilson did not know of the confrontation between Brown and the store owner at the time he confronted Brown for jaywalking.⁴⁹ The whole affair seemed timed in such a way (many suggested) as to imply the police were trying to “spin” the narrative against Brown.⁵⁰

The Supreme Court has held that the press as an entity has no uniquely special status relative to other speakers;⁵¹ but as a matter of convention, the press has been thought to have the responsibility to report the news and to report it objectively.⁵² This responsibility, in turn, gives it special privileges and special access to the news as it is happening. But as the story of Ferguson unfolded, reporters were routinely treated as poorly as the protesters. They were told to shut off cameras, to stop recording, and, as well, to keep moving.⁵³ Sometimes they were told these things by actions as well as by words. If the police were not going to shape the narrative positively, by sharing information, they would do their best to prevent a negative narrative about them from developing.

In a widely reported instance, both Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan J. Reilly were harassed and, ultimately, detained by police.⁵⁴ According to Lowery, he was in the Ferguson McDonalds’ recharging his phone when several police entered, and one asked him for identification. With Lowery refusing the request, the police began to turn away, but then came back and told him and Reilly to leave. Lowery started recording the police with his cell phone, and was immediately told to stop. Lowery resisted, asking if he didn’t have the right to record the officers. The officer “backed off, but told [Lowery] to hurry up.”⁵⁵ Lowery continued:

So I gathered my notebook and pens with one hand while recording him with the other hand.

As I exited, I saw Ryan to my left, having a similar argument with two officers. I recorded him, too, and that angered the officer. As I made my way toward the door, the officers gave me conflicting information.

One instructed me to exit to my left. As I turned left, another officer emerged, blocking my path.

“Go another way,” he said. As I turned, my backpack, which was slung over one shoulder, began to slip. I said, “Officers, let me just gather my bag.”

As I did, one of them said, “Okay, let’s take him.”⁵⁶

Lowery was put into plastic handcuffs and taken into custody, but not without having his face slammed into a soda machine first. Reilly, too, was arrested. They were both released within 15 minutes of arriving at the Ferguson Police Department after they were identified as credentialed members of the media. Reilly called the experience “dehumanizing.”⁵⁷

But the experiences of Lowery and Reilly weren’t unique: reporters were asked to stay in the “press pen,” were escorted away from protesters, and were sometimes arrested⁵⁸—showing that the institutional press frequently worked under greater constrains than the general public. Early on, reporters had to sue to clarify that they were within their First Amendment rights to record the police and the police response to the protests. Mustafa Hussein, an activist and journalist, claimed in a suit against the Ferguson police that in the days after the death of Michael Brown, police officials “ordered everyone on the street to stop recording.”⁵⁹ Upon hearing this, the lawsuit states, Hussein was “required to choose between surrendering his First Amendment right to record the action unfolding on the street before him or risking arrest or serious bodily injury inflicted by law enforcement officials if he continued recording”⁶⁰—precisely the choice faced by Lowery and Reilly.

Hussein obtained an injunction against the police, preventing them from “interfering with individuals who are photographing or recording at public places but who are not threatening the safety of others or physically interfering with the ability of law enforcement to perform their duties.”⁶¹ In the DOJ report released in March of 2015, the policy of restricting recording of the police was picked out for special condemnation.⁶² The right to record the police, the report stated, had been clearly established in the Eighth Circuit and nationwide.⁶³

4. In the Days That Followed, Perceptions Differed as to What Happened: Whether the Man Was Mostly Blameless or Mostly to Blame, and Whether the Force Was Excessive or Proportional

In all of the three lawsuits just outlined, the police lost and the protesters and the media won. In each case, a federal judge enjoined the behavior of the police, holding that it represented a threat to the First Amendment rights of speech and assembly. What then explains the behavior of the police? We should note, first, that in each case the court didn’t say that the interests of law enforcement were entitled to no weight. Indeed, in the longest opinion we have, Judge Perry went out of her way to explain the police’s interest in maintaining order and protecting the safety of the public. And in the orders enjoining the use of tear gas and the practice of preventing protesters from recording, the court said that the problem was not that these measures could never be used, but that they could not be used against people who do not represent a threat to law enforcement. So there are values to be weighed against the First Amendment; the question is, when do those values trump the First Amendment? But the failure of the police in Ferguson points to a larger problem, because the policies and procedures the Unified Command used against the protesters weren’t just instances of occasional mistakes. The need for injunctions revealed a pervasive failure. It was not just that the police were at times misjudging the rights and interests of the protesters, whether on the spot or as a matter of policy. It was as if the First Amendment was never a consideration.

Sociologists and criminologists who study the relationship between protesters and the police speak broadly of two models: the “escalated force” model and the “negotiated management” model.⁶⁴ The two differ most strikingly in how they regard the First Amendment. In the escalated-force model, the First Amendment is treated at best as distraction and at worst a pretext for those who wish to disguise their criminal activity. In the negotiated-management model, by contrast, protecting the First Amendment is treated as an important goal of successful policing. In the force model, the First Amendment rights of protesters and the police are treated as antagonistic. In the negotiation model, the interests of the police and protesters are seen as converging.

The rhetoric surrounding the policing of Ferguson was heavily in the register of escalating force, and the practice of the Unified Command was practically textbook. Protesters were viewed as a hostile force that needed to be boxed in and contained. Each disruption, however minor, was used as a further excuse to swiftly ramp up the level of force. Little effort was made to communicate the aims and methods of the police to the protesters. Arrests were being made for activity that fell short of actual lawbreaking.

What is especially troublesome about the escalated-force model is that it can quickly become a self-fulfilling prophecy—and the events of Ferguson seem to bear this out. If you are primed to use force, you may use that force sooner rather than later. You may let the occasional instances of lawless activity stand in for the activity of the protesters in general. You will see things differently, and as a result react to them differently. Shows of force can antagonize the protesters, which lead to further shows of force—which in turn further antagonizes the protesters.⁶⁵

In news conferences and other public speeches, Jon Belmar, the Chief of Police of St. Louis County presented the fact that no lives were lost as his main achievement—and as proof of the success of his tactics.⁶⁶ No one should deny that preventing the loss of lives is a worthy goal, but to present it as the only goal or the primary metric of success is symptomatic of the escalating-force model: to use whatever means are necessary to prevent the loss of life and destruction of property. The First Amendment is presented as a lower priority, if it stands as a value at all.

For a brief moment—the space of a few days—when Missouri State Highway Patrol Captain Ron Johnson took charge of the Unified Command, there were signs that a different model would be used.⁶⁷ Pictures of Johnson (who was from Ferguson) marching with the protesters raised hopes that the police would no longer fight the protesters, but help them.⁶⁸ These images suggested the use of the negotiated-management model—where police aren’t there to stamp out protests but to facilitate their expression. If there is some minor lawbreaking, this can be tolerated, because the price of cracking down on lawbreaking can be too dear: the suppression of freedom of speech.⁶⁹ On the negotiated-management model, the police are there to moderate the inevitable disruption, not to make sure there is no disruption at all.⁷⁰

But that moment of negotiated management faded quickly, and it was made clear that it was never really an option at all. As soon as things got a little out of hand, force was brought to bear again—swiftly and powerfully. Pictures of militarized vehicles and tear gas again dominated the media. Toleration for free speech meant toleration for disorder, and the First Amendment suffered.

Johnson’s brief détente illustrates a limitation to the negotiated-management model. It cannot just be brought out at the time there is a crisis. Rather, the groundwork for negotiation must be laid much earlier, by a collaborative relationship between the police and the community they serve that fosters and preserves open lines of communication between them. ⁷¹ This prior, ongoing relationship is a necessary precondition for citizens’ exercise of their rights. Both the tragedy of Michael Brown and the tragedy of the clash between protesters and the police have a deeper root in the many prior failures of governance that existed in Ferguson.

5. The Deliberations of the Grand Jury Were Kept Secret, But the Prosecutor in a News Conference and in Subsequent Public Events Got to Tell His Side of the Story

The grand jurors voted not to indict Wilson, and instead of this being the end of things, it was another beginning. Again protests erupted, and again force was used. Weirdly, though, the style of the police initially seemed to be hands-off, and property and businesses suffered badly. But soon enough, the police resorted to the same tactics that they had used for the first protests. If at first there was no force, it was clear soon enough that the police were more than willing to return to the use of force.

Meanwhile, Prosecutor Bob McCulloch held a news conference to explain why he thought the grand jury reached the conclusion it did, leading some to accuse McCulloch of acting more like Wilson’s defense attorney than a prosecutor for the State.⁷² McCulloch also stated that he would, shortly, release nearly all the evidence that was available to the grand jury as they made their deliberations.⁷³

McCulloch and his supporters hailed what can only be called the “data dump” of grand jury witness testimony and evidence⁷⁴ as an instance of transparency—especially in comparison to the opacity of the Ferguson police in the aftermath of the shooting. But it was also clear that combing through all the documents would be a massive undertaking, one that would take weeks, if not months (if it was to be undertaken at all). Still, if the First Amendment values citizen knowledge and transparency about government decision-making, then the release of the transcripts from the grand jury must be rated as a plus for free speech. If there was not to be a trial with the openness and discovery that a trial requires, this may have been the next best thing.

But there was still something that McCulloch didn’t and couldn’t disclose: the actual deliberations of the grand jurors themselves. This became the basis of an additional First Amendment challenge. In the weeks following the release of the decision, one grand juror anonymously sued to be allowed to speak about her experiences on the grand jury.⁷⁵ Missouri law requires the jurors to swear an oath to secrecy, and prescribes certain penalties if they speak about what they learned as a grand juror.⁷⁶ If grand jurors could freely disclose what witnesses told them and what facts they learned as a grand juror, it might dissuade future witnesses from testifying in a grand jury. But, given McCulloch’s disclosure of the grand jury records, there might not be a similar issue in this case. And the grand juror seemed to want to discuss not the reactions of the other grand jurors, but mainly his own feelings and impressions.⁷⁷ McCulloch was able to frame the narrative about what the grand jury found and did. One of those jurors wanted to provide her narrative.

The lawsuit tested an underlitigated area of the First Amendment. While the Supreme Court has held that witnesses can freely talk about what they told the grand jury,⁷⁸ case law is sparse about what grand jurors can tell about their own experiences. Moreover, the Ferguson grand juror’s suit presents unique facts, where nearly all of the information supplied to the grand jury has already been disclosed, and the grand juror only wants to speak about her own subjective experience and thoughts and not release any facts about the actual deliberations of the grand jury—what other people said, or how they voted. The grand juror, in her lawsuit, claims her speech has been “chilled” because she cannot know for certain whether McCulloch will prosecute her for violating grand jury secrecy.⁷⁹

The First Amendment implications of the battle are twofold, for not only is the speech of the grand juror at issue, so too is the right of concerned citizens for whom the information may help them make up their minds about why the grand jury decided as it did. The risk, as it was in the early days of information about Ferguson, is that a partial transparency—when we know only some information, and interested parties get to pick and choose which information we see—can sometimes be as distorting to debate as no transparency at all.

McCulloch moved to dismiss the lawsuit, arguing that while the federal court had equitable jurisdiction, it should abstain from exercising that jurisdiction when there was a possible state court remedy.⁸⁰ And a federal judge has granted McCulloch’s order to dismiss, on the ground that the issue should be decided in state court, not in federal court.⁸¹ As of this writing, this is where the lawsuit stands: in state court.⁸²

6. A DOJ Report Released in March Showed That Aggressive Policing Tactics Were Long a Part of Ferguson’s History, and Demands Were Made for Reform

“Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats ….”⁸³

 

On March 4, 2015, the DOJ released two reports. The first concerned whether Darren Wilson violated Michael Brown’s civil rights. The report found that Wilson’s actions as an individual officer, acting within the scope of his job, “lack[ed] prosecutive merit.”⁸⁴ The second DOJ report, describing a history of rights abuses in Ferguson, was a damning judgment of the Ferguson Police Department, of which Wilson was a member.⁸⁵ It is hard not to read the reports together, not as rendering a conflicting judgment, but as making an overall negative one: even if in this one instance Wilson might have behaved within the limits of the law, this was something of an exception and not the rule. By aggressive and revenue-oriented policing, the Ferguson Police Department had sown deep mistrust between law enforcement and the community.⁸⁶

What the report on the Ferguson Police Department revealed in particular was that the practices used to enforce discipline and stifle dissent were not unique to the Brown protests; rather, they were set plays in the department’s playbook. Long before the protests, Ferguson police were arresting people for their “manner of walking,” for criticizing the police (so-called “contempt of cop”), and for recording officers.⁸⁷ They would do these things all in the absence of any evidence that arrests were necessary because of safety concerns.⁸⁸ Moreover, police behavior in these situations served only to heighten tensions.⁸⁹ Arrests of people simply exercising their rights, the report said, reflected the fact that the Ferguson police had no tools or training “for de-escalating emotionally charged scenes, even though the ability of a police officer to bring calm to a situation is a core policing skill.”⁹⁰

In the end, though, the report did not tell us anything we could not have already seen about the Ferguson police in how they responded to the protests after the shooting of Michael Brown: they were just responding to dissent and disruption as they always had—although this time, perhaps more systematically and on a larger scale, and in front of a larger audience. The City of Ferguson, and the voices of those in solidarity with the city, suffered.

Conclusion: History Keeps on Repeating Itself

It is a sad irony that the response to the protests may have made those protests that much more effective in getting their message across, and that much more persuasive. By displaying an aggressive pose, the police proved that what many feared had happened between Brown and Wilson in Ferguson surely could have happened, because something like it was happening to the protesters in Ferguson. And in the days and months that followed, more instances of police killings around the nation came to light, which were then followed by more protests. We now seem to be stuck in a recurring loop of action and reaction nationwide—police action and then reaction by protesters, followed by more police action, followed by more protests.⁹¹

We may, at times, despair whether anything is changing—and whether it can change. We may wonder whether the protests are doing any good and whether it is worth the cost. But if this is our attitude, we might look at one of the most necessary aspects of freedom of speech. It is not captured in some of the more popular metaphors justifying free speech—speech as a “safety valve” or speech playing a role in the “marketplace of ideas.”⁹² It is captured in something more fundamental: the necessity of speaking truth to power. It is here that protest justifies itself as an end in itself.

Notes

1. U.S. DEP’T OF JUSTICE, DEPARTMENT OF JUSTICE REPORT REGARDING THE CRIMINAL INVESTIGATION INTO THE SHOOTING DEATH OF MICHAEL BROWN BY FERGUSON, MISSOURI POLICE OFFICER DARREN WISON (Mar. 4, 2015) [hereinafter DOJ REPORT], http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf; U.S. DEP’T OF JUSTICE, INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT (Mar. 4, 2015) [hereinater DOJ INVESTIGATION], http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report_1.pdf.

2. See, e.g., Eric Zorn, “Hands up, Don’t Shoot” Is a Lie Obscuring a Bigger Truth, CHI. TRIB., Mar. 19, 2015, http://www.chicagotribune.com/news/opinion/zorn/ct-ferguson-brown-wilson-hands-up-shoot-holder-usdoj-perspec-0320-jm-20150319-column.html (“Wilson’s exoneration is not tantamount to an exoneration of American law enforcement in how it interacts with minority communities.”).

3See Christine Byers, After Ferguson, Police Consider “Tactical Retreat” Instead of Force in Certain Cases, ST. LOUIS POST-DISPATCH, Jan. 24, 2015, http://www.stltoday.com/news/local/crime-and-courts/after-ferguson-police-consider-tactical-retreat-instead-of-force-in/article_7fa34fed-9770-5860-ad10-4358b4523b76.html (suggesting that better training may have led to a “tactical retreat” by Wilson rather than to further confrontation).

4. Petition at 1–2, 4–7, Abdullah v. Cnty. of St. Louis, Mo., 52 F. Supp. 3d 936, 939 (E.D. Mo. 2014) (No. 4:14-cv-1436), http://www.aclu-mo.org/download_file/view_inline/1268/535/; Petition at 2–4, 7–13, Templeton v. Dotson, No. 4:14-cv-1436 (CEJ) (E.D. Mo. Dec. 8, 2014), http://www.documentcloud.org/documents/1378607-templeton-vs-dotson.html.

5. Petition at 1–2, Doe v. McCulloch, 4:15 CV 6 RWS, 2015 WL 2092492 (E.D. Mo. 2015) (Jan. 5, 2015), http://www.aclu-mo.org/files/4214/2047/0504/Grand_Jurur_Doe_Complaint_1-5-15.pdf.

6. There were, however, allegations that police did point their guns at protesters. Josh Levs, Ferguson Violence: Critics Rip Police Tactics, Use of Military Weapons, CNN (Aug. 15, 2015, 10:47 AM), http://www.cnn.com/2014/08/14/us/missouri-ferguson-police-tactics/.

7. Miss. Women’s Med. Clinic v. McMillan, 866 F.2d 788, 796 (5th Cir. 1989) (“[I]n regulating freedom of speech in a public forum, the Supreme Court has been reluctant to construe such regulations in such a way as to drain the life-blood of a democracy—‘uninhibited, robust, and wide-open debate’ on controversial public issues.”).

8. Whitney v. California, 274 U.S. 357, 375 (1927) (“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary.”).

9. See, e.g., Mark Berman, What Do We Really Know about the Shooting of Michael Brown, and of Brown Himself?, WASH. POST, Aug. 12, 2014 at A12, http://www.washingtonpost.com/news/post-nation/wp/2014/08/11/what-you-need-to-know-about-the-death-of-an-unarmed-black-teenager-in-missouri; Tracking the Events in the Wake of Michael Brown’s Shooting, N.Y. TIMES (Nov. 24, 2014), http://www.nytimes.com/interactive/2014/11/09/us/10ferguson-michael-brown-shooting-grand-jury-darren-wilson.html?_r=0.

10. DOJ REPORT, supra note 1; DOJ INVESTIGATION, supra note 1.

11. DOJ REPORT, supra note 1 at 12, 44.

12. E.g., Petition, Abdullah, supra note 4, at 3–4.

13. Id. at 1–2.

14. Id.

15. See more generally the use of “manner of walking” violations by police in Ferguson. DOJ INVESTIGATION, supra note 1, at 27–28.

16. Abdullah, 52 F. Supp. 3d at 942:

The evidence from plaintiff’s witnesses shows that the police, including those from St. Louis County, told many people who were either peacefully assembling or simply standing on their own that they would be arrested if they did not keep moving. Some law enforcement officers told people that they could stand still for no more than five seconds. Others gave instructions that people were walking too slowly, or that they could not walk back and forth in a small area. Some law enforcement officers did not make people keep moving, others did. Some officers applied the strategy to reporters, others did not. Many officers told people who were standing in small groups on the sidewalks during the daytime hours that they would be arrested if they did not keep moving.

17. McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (“These places—which we have labeled ‘traditional public fora’—have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” (internal quotes and citations removed)). Ironically, perhaps, the protesters chanting, “Whose streets? Our streets!” gave a more accurate view of the law than the officials who devised and tried to enforce the five-second rule. (Thanks to Joe Welling for this point.)

18. F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012):

Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech. (citation deleted)

19. ACLU Fights Ferguson’s “Don’t Stand Still” Order, COURTHOUSE NEWS SERV. (Aug. 18, 2014), http://www.courthousenews.com/2014/08/18/70523.htm.

20. Abdullah, 52 F. Supp. 3d at 939–40.

21. Id. at 941 (“At the hearing the defendants provided evidence that earlier that afternoon they had established an alternate place where protesters and others could gather and express themselves without being required to keep moving. I denied the request for a temporary restraining order.”).

22. Id. at 942–42:

After the [initial] hearing one of the ACLU lawyers went to Ferguson and tried to find the alternative protest area. Highway Patrol officers told him that they did not know anything about an approved protest zone. He was twice told to keep moving while he attempted to ask other people whether they knew of an alternative site. He returned to the area the next morning, on August 19, again to try to locate the alternate protest zone. The place that seemed to correspond to the testimony was either an open field, or a parking lot by a furniture store. The owner of the furniture store told him that the parking lot was his private property and that he had not agreed it could be used as a protest zone. The witness asked several police officers the location of the area designated for protesters to stand still and they either told him there was no such thing or that they had no idea what he was talking about. He also observed police telling people they must keep walking, even though there was no unrest or violent behavior at that time.

See Cory Doctorow, Ferguson’s “Free Speech Zone” Is a Padlocked No-Man’s-Land, BOINGBOING (Aug. 21, 2014, 6:00 AM), http://boingboing.net/2014/08/21/fergusons-free-speech-zone.html (“The ACLU was denied an emergency injunction against Ferguson’s cops’ illegal ‘no standing on the sidewalk’ rule because Ferguson promised to erect a ‘free speech zone,’ but the only thing on that site is a fenced-off, locked-up pen that no one is allowed to use.”).

23. The judge seemed to acknowledge this in her subsequent order granting the injunction. See Abdullah, 52 F. Supp. 3d at 947 (noting protest zone was “belatedly established” and was not an “adequate alternative forum”).

24. Id. at 946 (“the keep-moving policy cannot meet constitutional standards for definiteness and clarity”).

25. Id.

26. Id. at 946–47.

27. Also, as noted earlier, the judge found the alternative protest area to be inadequate. Id. at 947.

28. Consent Judgment, Abdullah, 52 F. Supp. 3d 936 (E.D. Mo. Nov. 5, 2014), https://cbsstlouis.files.wordpress.com/2014/11/ferguson_consent_judgment_11-5-14.pdf.

29. DOJ REPORT, supra note 1, at 13–14, 27, 29, and passim.

30. On the history of “unlawful assembly” laws in Missouri, see John Inazu, Unlawful Assembly as Social Control (July 27, 2015) (unpublished manuscript) (on file with author).

31. The violence continued well after the death of Michael Brown, for example, when two police officers were hit by bullets—although it is unclear whether the person who did the shooting was involved in the protests. Krishnadev Calamur, Arrest Made in Shooting of Two Officers in Ferguson, Police Say, NAT’L PUB. RADIO (Mar. 15, 2015), http://www.npr.org/blogs/thetwo-way/2015/03/15/393177470/arrest-made-in-shooting-of-two-officers-in-ferguson-police-say.

32. The judge continued, “The police must be able to perform their jobs….” Abdullah, 52 F. Supp. 3d at 949.

33. E.g., Armed w/ Military-Grade Weapons, Missouri Police Crack Down on Protests over Michael Brown Shooting, DEMOCRACY NOW (Aug. 14, 2014), http://www.democracynow.org/2014/8/14/armed_w_military_grade_weapons_missouri.

34. “The Unified Command includes the St. Louis County Police Department and the Missouri State Highway Patrol, among others.” Joanie Vasiliadis, Unified Command Speaks on Ferguson Aftermath, KSDK.COM (Nov. 25, 2014), http://www.ksdk.com/story/news/local/ferguson/2014/11/25/unified-command-speaks-on-ferguson-aftermath/70111216/.

35. Petition, Templeton, supra note 4, at 1–2.

36. Id. at 2.

37. Id. at 23–24.

38. Id. at 1.

39. Id. at 11.

40. Temporary Restraining Order, Templeton v. Dotson, No. 4:14-cv-2019 (CEJ) (E.D. Mo. Jan. 5, 2015), http://www.stltoday.com/temporary-restraining-order-issued-by-u-s-district-judge-carol/pdf_3dc9af8b-07f7-5d8c-a7f1-7dbb7be08df3.html.

41. Id. at 2.

42. Id.

43. Id. at 3.

44. “The evidence establishes that the defendants created policies and procedures for the law enforcement response to the protests, including authorizing the use of tear gas and other chemical agents for the purpose of dispersing crowds of protesters.” Id.

45. Jason Parham, Ferguson Police Release Name of Officer Who Killed Michael Brown, GAWKER (Aug. 15, 2014), http://gawker.com/ferguson-police-release-name-of-officer-who-killed-mich-1622033925.

46. E.g., Socket Error, SNOPES, http://www.snopes.com/info/news/wilson.asp (last updated Nov. 25, 2014).

47. See, e.g., Holly Yan, Attorney: New Audio Reveals Pause in Gunfire When Michael Brown Was Shot, CNN (Aug. 27, 2014, 12:42 PM ET), http://www.cnn.com/2014/08/26/us/michael-brown-ferguson-shooting/.

48. Koran Addo et al., Release of Information—Some Demanded, Some Unexpected—Changes Dynamics in Ferguson Shooting, ST. LOUIS POST-DISPATCH (Aug. 15, 2014 11:45 PM), http://www.stltoday.com/news/local/crime-and-courts/release-of-information-some-demanded-some-unexpected-changes-dynamics-in/article_0aa34e2b-bd3e-5fb1-81d6-736f98cccfcb.html.

49. Ferguson Police Chief Thomas Jackson—hours after documents came out labeling the 18-year-old Brown as the “primary suspect” in the store theft—told reporters the “robbery does not relate to the initial contact between the officer and Michael Brown.” Greg Botelho & Don Lemmon, Ferguson Police Chief: Officer Didn’t Stop Brown as Robbery Suspect, CNN (Aug. 15, 2014, 10:29 AM), http://www.cnn.com/2014/08/15/us/missouri-teen-shooting/. Wilson’s story on this point seems to have changed, however. He later claimed that he did know that Brown was a suspect in the robbery. Laura Collins, Exclusive: Darren Wilson Changed Crucial Elements of His Story in Aftermath of Michael Brown Shooting—Including Whether He Knew Teenager Was “Wanted Thief,” DAILY MAIL (Dec. 2, 2014, 11:24 AM), http://www.dailymail.co.uk/news/article-2857630/EXCLUSIVE-Darren-Wilson-changed-crucial-elements-story-aftermath-shooting-Michael-Brown-dead-including-knew-teenager-wanted-thief.html.

50. See Addo, supra note 48.

51. First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 801 (1978). Indeed, the expansiveness (and emptiness) of the very idea of the “press” was evident in the protests in Ferguson—where news was conveyed by ordinary people via posts on Twitter, Vine, blogs, and Facebook. For a contrary view, and a defense of the institutional press’s constitutional specialness, see Sonja R. West, Awakening the Press Clause, 58 UCLA L. REV. 1025 (2011).

52. In re Roche, 411 N.E.2d 466, 472 n.9 (Mass. 1980) (“[T]he powerful rostrum of a newsroom or a broadcast studio may confer status of a type that is both real and laden with responsibility, but not, in [the Court’s] view, status of constitutional dimension.”).

53. See generally PEN AM., PRESS FREEDOM UNDER FIRE IN FERGUSON (Oct. 27, 2014), http://www.pen.org/sites/default/files/PEN_Press-Freedom-Under-Fire-In-Ferguson.pdf (describing the many instances of press suppression in the wake of the Brown shooting and subsequent protests).

54. Wesley Lowery, First Person: A Reporter’s Arrest, WASH. POST, Aug. 14, 2014, at A14, http://www.washingtonpost.com/politics/in-ferguson-washington-post-reporter-wesley-lowery-gives-account-of-his-arrest/2014/08/13/0fe25c0e-2359-11e4-86ca-6f03cbd15c1a_story.html.

55. Id.

56. Id.

57. Id.

58. Brian Stelter, 6 More Journalists Arrested in Ferguson Protests, CNN (Aug. 19, 2014, 8:31 PM ET), http://www.cnn.com/2014/08/19/us/ferguson-journalists-arrested.

59. Petition at 4, Hussein v. Cnty. of St. Louis, Mo., No. 4:14-cv-1410 (E.D. Mo. Aug. 14, 2014), http://www.aclu-mo.org/files/3414/0804/0291/08-14-14_Videotaping_Complaint.pdf.

60. Id.

61. Order, Hussein v. Cnty. of St. Louis, Mo., No. 4:14-cv-1410-JAR (E.D. Mo. Aug. 14, 2014), http://www.clearinghouse.net/chDocs/public/PN-MO-0001-0005.pdf.

62. DOJ INVESTIGATION, supra note 1, at 26–28.

63. Id. at 26.

64. David Klinger, Assoc. Professor of Criminology and Crim. Justice at Univ. of Mo. St. Louis, Remarks in Panel 1: Reflections on Policing Protest, at the Saint Louis University Public Law Review Symposium: The Thin Blue Line: Policing Post Ferguson (Feb. 20, 2015), http://law.slu.edu/event/thin-blue-line-policing-post-ferguson (video).

65. See generally Radley Balko, After Ferguson, How Should Police Respond to Protests?, WASH. POST (Aug. 14, 2014), http://www.washingtonpost.com/news/the-watch/wp/2014/08/14/after-ferguson-how-should-police-respond-to-protests.

66. Eli Yokely, Officials Defend Handling of Ferguson Case, N.Y. TIMES, Feb. 20, 2015, at A11, http://www.nytimes.com/2015/02/21/us/officials-defend-handling-of-ferguson-case.html.

67. See Elahe Izadi & Wesley Lowery, Meet the Missouri Highway State Patrol Captain Who Has Taken Over in Ferguson, WASH. POST (Aug. 15, 2014), http://www.washingtonpost.com/news/post-nation/wp/2014/08/14/meet-the-missouri-highway-state-patrol-captain-who-is-taking-over-in-ferguson.

68. Id.

69. Klinger, supra note 64.

70. Id.

71. Arguably there was more than enough time to do this between the shooting of Michael Brown and the release of the grand jury verdict.

72. Alana Horowitz, Ferguson Prosecutor Robert McCulloch Gives Bizarre Press Conference, HUFFINGTON POST (Nov. 24, 2014), http://www.huffingtonpost.com/2014/11/24/bob-mcculloch-ferguson_n_6215986.html.

73. David Hammer, Ferguson Grand Jury Documents Withheld, KSDK.COM (Dec. 13, 2014, 4:56PM CST), http://www.ksdk.com/story/news/local/ferguson/2014/12/08/ferguson-grand-jury-documents-withheld/20077183/.

74. E.g., Ferguson Grand Jury Documents, KSDK.COM (Dec. 14, 2014, 6:53 PM), http://www.ksdk.com/story/news/local/ferguson/2014/11/25/ferguson-grand-jury-documents/70100296/.

75. Aamer Madhani, Ferguson Grand Juror Sues to Remove Gag Order, USA TODAY, Jan. 5, 2015, http://www.usatoday.com/story/news/nation/2015/01/05/ferguson-michael-brown-grand-juror-sues-gag-order/21284797/.

76. MO. REV. STAT. § 540.080 (2000).

77. Petition, supra note 5, at 6; see Eugene Volokh, Ferguson Grand Juror Sues, Seeking Right to Speak about His Reactions to the Evidence, WASH. POST (Jan. 5, 2015), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/05/ferguson-grand-juror-sues-seeking-right-to-speak-about-his-reactions-to-the-evidence/ (“But the plaintiff’s lawyer told me—in response to an e-mail from me—that the plaintiff seeks only to disclose his or her own thoughts and reactions to the evidence, not the other grand jurors’ reactions.”).

78. Butterworth v. Smith, 494 U.S. 624, 625 (1990).

79. Petition, supra note 5, at 7–8.

80. Doe, 2015 WL 2092492, at *1, *7.

81. Id. at *1 (“I find that Missouri courts should be given the opportunity to resolve this issue before Juror pursues a federal constitutional challenge.”).

82. Grand Juror Doe v. Robert McCulloch, AM. CIVIL LIBERTIES UNION OF MO., http://www.aclu-mo.org/legal-docket/grand-juror-doe-v-robert-mcculloch/ (last updated May 29, 2015).

83. DOJ INVESTIGATION, supra note 1, at 2.

84. DOJ REPORT, supra note 1, at 86.

85. DOJ INVESTIGATION, supra note 1, at 1–6.

86. Id.

87. Id. at 7, 25, 26.

88. Id. at 27.

89. Id. at 35.

90. DOJ Id. at INVESTIGATION, supra note 1, at 26.

91. As this chapter was being prepared for publication, rumors surfaced of a new report to be released by the Department of Justice chastising the police response to the Ferguson protesters for increasing tensions, rather than reducing them. See Pete Williams, DOJ Report Faults Police Response to Ferguson Protests, NBCNEWS.COM, June 30, 2015, http://www.nbcnews.com/news/us-news/doj-report-faults-police-response-ferguson-protest-n384561.

92. RONALD K.L. COLLINS & SAM CHALTAIN, WE MUST NOT BE AFRAID TO BE FREE: STORIES OF FREE EXPRESSION IN AMERICA 55 (2011) (describing the “safety valve” theory); C. EDWIN BAKER, HUMAN LIBERTY & FREEDOM OF SPEECH (1992) (analyzing the “marketplace of ideas” metaphor).