The Agents of SHIELD episode “Repairs” briefly touched on the First Amendment right to protest. The situation was a woman named Hannah Hutchens, apparently with telekinetic powers, had protestors outside of her home on the street. After being asked by Coulson to do something about the protestors/lynch mob, a police officer responded, “It is a free country.”
Would the protestors’ speech be protected under the First Amendment?
The First Amendment prohibits the Federal Government, and states through the Fourteenth Amendment, from abridging the freedom of speech and “interfering with the right to peaceably assemble.”
The First Amendment right to free speech is not absolute. “True threats” are not protected by the First Amendment. This means “objective threats of violence” are not protected, because they “contribute nothing to public discourse.” United States v. Martinez, 2013 U.S. App. LEXIS 23843, 5-6 (11th Cir. Fla. Nov. 27, 2013), citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, (1992). However, this can be challenging analysis to determine what is a true threat from political hyperbole. Martinez, at *6, citing Watts v. United States, 394 U.S. 705, 707-708 (1969)
The Supreme Court has defined a “true threat” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Martinez, at *11, citing Virginia v. Black, 538 U.S. 343, 359 (U.S. 2003).
The audible comments directed at Hannah Hutchens included the following:
We don’t want you here;
Get out; and
These statements were followed by egg throwing.
While certainly not nice, these statements do not appear to be true threats on the surface, because there was not a serious expression of an intent to commit an act of unlawful violence. However, the egg throwing was not in anyway Constitutionally protected. Moreover, the act of throwing the egg was actually a trespass, which would justify police action to remove the crowd. In common law, the “chief characteristic of trespass” was harming a person or property which was immediately and directly caused by a forceable act of another. Haas v. Lavin, 625 F.2d 1384, 1386 (10th Cir. Colo. 1980), citing Lord Kenyon, C. J., in Day v. Edwards. The classic example is if a person throws a log at the highway that hits someone, that person may sue on trespass, because it is an immediate wrong. Haas, at *1386, fn 2, citing 1 Strange 636.
The tone of the protestors appeared less of a peaceable assembly and more of a violent one. These actions move the group of protestors away from a peaceable assembly to that of a mob. States generally define mob action as the “assembly of 2 or more persons to do an unlawful act.” People v. Montgomery, 179 Ill. App. 3d 330, 334 (Ill. App. Ct. 1st Dist. 1989), citing Ill. Rev. Stat. 1985, ch. 38, par. 25 — 1(a)(2).
The egg throwing and comments move the type of assembly away from a protest to the harassment of a private individual, through intimidation, accusations of being a murderer and acts of violence that could escalate to a lynch mob. The police should have dispersed the crowd after the egg was thrown, because that broken shell ended any peaceable assembly. The “eggshell heard around Utah” transitioned the protest to that of a mob with more then two persons to do unlawful acts. Specifically vandalism and trespass from the egg bombardment.
As for protesting in front of the house of a private individual, things get a more complicated in First Amendment law. Case law holds that “[s]treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” Carey v. Brown, 447 U.S. 455, 460 (U.S. 1980).
This does not mean the streets can be filled with protestors. Restrictions can be placed that are based on the time, place and manner of taking to public forums. Moreover, there is not a general right to protest in front of a private residence. For example, in a case involving a former US Ambassador whose home included a golf course, security guards and fence, employees were allowed to protest outside the home. However, protesting outside of residences need to be analyzed on a case-by-case basis. Annenberg v. S. Cal. Dist. Council of Laborers, 38 Cal. App. 3d 637, 648 (Cal. App. 4th Dist. 1974).
Hannah Hutchens had a normal house in a cul de sac. The mob outside of her home was intimidating, harassing, and becoming violent. There is no way such conduct would be protected by the First Amendment. The front of someone’s house in middle America is not a public forum and absolutely not a “free country”; it is harassment and an invasion of privacy.