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With the George Floyd protests going on I keep seeing news about curfews as early as 6pm, police driving by peaceful gatherings and firing chalk rounds or arresting people for illegal gatherings, I thought back to grade school learning about the constitution and thought I remembered something about the right to peacefully gather in there somewhere.

So I looked it up and sure enough:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

But the wording of this suggests the 1st amendment only applies to federal law. Does it not apply to state and local law?

Does this mean that states and municipalities have the legal grounds to deny all forms of peaceful gathering / protest?

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    Perhaps more suitable for Law.SE? – CDJB Jun 4 at 13:06
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    @CDJB: IMHO this question directly pertains to the basic structure of the US government, and particularly to questions of federalism etc. Questions about how a government works are on-topic on Politics.SE as far as I'm aware. – Kevin Jun 5 at 18:42
  • It's worth noting that each of the states have their own constitution and most of them contain their own version of the bill of rights. – Jason Goemaat Jun 7 at 3:13
  • @RobbieGoodwin: You may hold that opinion, but the help center disagrees with you (point #2). This is clearly a question about "the rules and processes by which policy is made," so it's on-topic. – Kevin Jun 8 at 6:23
  • @Kevin When Help Centre said "Processes are central to how legislation is made" did you not feel patronised? When Help Centre said "Questions seeking to understand the rules and processes by which policy is made…" were OK, did you not see that as a measure of Help Centre's value? Why trust a Centre whose grip is measured by "… the rules and processes…" containing the word "policy"? That's to compare basic systems: monarchy v empire, communism v dictatorship v democracy; not whether democracy should be left or right. The 1st Amendment is about law, not politics, except historically. – Robbie Goodwin Jun 9 at 21:59
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Brain Z's answer is correct; the 14th Amendment extends the protections offered in the Bill of Rights to the states. This is known as the incorporation clause. So really, at the heart of your question is how can various local police forces arrest people for illegal gatherings in light of states also being bound the 1st Amendment's protest protections? Or, how can peaceful gatherings be illegal at all?

The answer is that the 1st Amendment protects the right of the people to peaceably gather. That's the operative word. A protest that violates otherwise constitutionally valid laws is by definition not a peaceable gathering.

The Supreme Court has ruled in the past that the government can apply "Content-neutral time, place, and manner restrictions" to the first amendment, subject to strict scrutiny (which is another topic beyond the scope of this question):

Time Restrictions:
The government can impose reasonable time limits on when gatherings can occur. An emergency curfew would fall into this category.

Place Restrictions:
The government can designate certain public places as off-limits for gatherings. Blocking traffic on an interstate highway would be an example of this. Blocking access to an essential government building (e.g. a police station) would be another.

Manner Restrictions:
The government can restrict what kinds of activities are allowed to take place during a protest. Distributing bricks and rocks that are likely to be thrown at other people or property for example; even if that's not your intent for that to happen.

It's important to remember that curfews -- so long as they are reasonable to the situation, applied equally to all, are not contingent on the content of the speech being engaged in, and do not restrict your rights generally speaking -- are lawful, and therefore the police have the ability to arrest you for violating it.

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  • Nitpick: Content-neutral time, place, and manner restrictions are usually subject to intermediate scrutiny. Strict scrutiny is usually applied to content-based discrimination (which usually does not pass). – Kevin Jun 10 at 1:35
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This subject has come up repeatedly in the US this year: first with the lockdowns to control the spread of Covid-19 and now the curfews and police actions against protestors against police brutality.

As other answers have mentioned, the Fourteenth Amendment means that laws of all governments in the US must respect the constitutional rights of all citizens.

However, no constitutional right is an absolute, existing in isolation. The constitutional rights of different individuals can come into conflict, and have to be sorted out by our legal system. For example, the 1st amendment protects freedom of speech. Suppose I hire a sound truck and come into your neighborhood at 3am and begin urging everyone to vote for the candidate I support. You call the police and complain that I'm violating local noise ordinances. The police come, arrest me for violating the noise ordinance, and I'm tried and convicted. I appeal on the grounds that the local noise ordinance is a violation of my 1st amendment right to speech. The city's argument is that there is a compelling state interest in limiting sources of noise during certain hours of the day, so that other citizens can go about their business (including getting a night's sleep). The Supreme Court considers the arguments and rules that restrictions on time, place, and manner of speech may be imposed if they are content neutral, as narrow as possible, and advance a vital government interest.

Similarly, in a pandemic, or a civil disturbance, which arguably presents a life threatening situation, cities and state can argue that the immediate threat to human life and property justifies restrictions on the free movement of citizens. They can be challenged in the courts and the local government will have to convince the court that the restrictions were reasonable, as narrow as possible, and not applied in an inequitable way.

Of course this doesn't prevent governments from trying to impose restrictions that are unreasonable, overly broad, and targeted at specific groups. This has to be addressed in the courts after the fact, and at the ballot box.

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From Britannica:

In 1868, however, the Fourteenth Amendment was added to the U.S. Constitution, and it prohibited states from denying people “liberty” without “due process.” Since then the U.S. Supreme Court has gradually used the due process clause to apply most of the Bill of Rights to state governments. In particular, from the 1920s to the ’40s the Supreme Court applied all the clauses of the First Amendment to the states. Thus, the First Amendment now covers actions by federal, state, and local governments. The First Amendment also applies to all branches of government, including legislatures, courts, juries, and executive officials and agencies. This includes public employers, public university systems, and public school systems.

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  • Are you sure it covers local governments? The language is "states"... – dandavis Jun 4 at 19:54
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    @dandavis, local governments derive their power from the state government. If the state government doesn't have the power to do something, it can't give that power to local governments. – Mark Jun 4 at 21:56
  • @dandavis I'm seeing many sources that support what it says in Britannica about this, but unfortunately I've not found a clear concise explanation of how and why, aside from what Mark's comment. – Brian Z Jun 5 at 11:38
  • @BrianZ the local element might make another good question either here or on law SE – UuDdLrLrSs Jun 5 at 12:23
  • @BrianZ: yeah, I'm not sure he's right either. I've seen locales that are both more lax (eg. ignoring stay at home) and more strict (eg. "dry" counties, curfew) than state mandates. – dandavis Jun 5 at 18:52
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A large number of answers have mentioned the courts' interpretations of the 14th Amendment, so I won't go into that here, but instead I will address a different aspect of the situation.

If the Bill of Rights had originally been intended to constrain the state governments rather than only Congress, then it probably would have been included in the original Constitution rather than added immediately afterward in the form of amendments. Recall that the state constitutions and the state governments that those constitutions established already existed before the Constitution was written, and they had bills of rights, and the idea that the Congress of the Confederation that existed then could violate rights to religious freedom or freedom of speech or assembly probably would not have occurred to people because that Congress didn't have much power, and dealt mainly with relations with other countries and with Indian tribes, and relations among the states and war and peace, and with territories within the U.S. that were not within any of the states. The drafters of the Constitution intended to give the newly-to-be-reorganized federal government only the powers that they gave it, leaving most government power with the states. The first 10 amendments were put there as a result of the states reacting to the proposed new Constitution, in part by expressing fears that expanding the power of the federal government by the adoption of this new Constitution could lead to that power being abused.

So the official recognitions of specified religions in some states in the 18th century were not a violation of the Constitution.

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This is really the fundamental issue in the protests. The problem is that the police have become a law unto themselves. If some cop, or group of cops, commits flagrant violations of law, what usually happens? First, their fellow cops are very unlikely to arrest them, and have been known to falsify evidence in order to shield them.

Then if public complaints are made, you have to find prosecutors willing to file charges and take the case to court. But the prosecutors work together with the police and are likely to be friends with them, so they will often refuse to prosecute, or sometimes (as with the Ahmaud Arbery case in Georgia) actively block prosecution.

Finally, even if a case is brought to trial, there are a considerable number of "cop lovers" (that is, people who believe the police are always right) among the population. It's likely that some of these will find their way on to the jury, rendering the trial a pointless exercise.

Bottom line is that the First Amendment and so on really doesn't apply in practice, out on the streets. They only come into effect later, as a defence in trials.

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    This would greatly benefit from references to sustain some claims such as "their fellow cops are very unlikely to arrest them, and have been known to falsify evidence in order to shield them." OR "there are a considerable number of "cop lovers". – Alexei Jun 5 at 7:12
  • @Alexei: This is not something that is really subject to references, other than reading the daily news for a few years, because any individual case can be dismissed as "just anecdotal". But I did supply you with a reference to a current case of police/prosecutors blocking prosecution. Or you might look at this from today's news: reuters.com/article/us-minneapolis-police-culture-specialrep/… Evidence is easy to find, if you just look. – jamesqf Jun 5 at 17:07

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