The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment.
Unfortunately, elected officials and law enforcement officers sometimes violate this right through means intended to thwart free public expression.
OneFargo, a coalition of local activists dedicated to unite the city in the fight against racism, is inviting the community to join them at a rally and march at 9 a.m. Friday at Island Park. The group is also asking Fargo Mayor Tim Mahoney and Cass County State’s Attorney Birch Burdick to speak and to provide answers to various questions the group asked them earlier this week.
But Mayor Mahoney told WZFG Radio the group does not have a permit, “would rather do rallies and protests than talk” and that “the four members of OneFargo” who are planning Friday’s rally and march “will be liable for any damage that occurs downtown in the City of Fargo.”
The ACLU of North Dakota is troubled by that statement.
“The right to peacefully assemble and protest are not without limits, of course, but Mayor Mahoney’s words seem designed to intimidate and dissuade people from protesting at all,” said Dane DeKrey, ACLU of North Dakota advocacy director. “If Mayor Mahoney is serious about mending years and years of racial injustice, he needs to stop making statements that chill free speech and start showing that he’s not only listening but is also dedicated to taking action.”
Mayor Mahoney’s focus on whether the protestors obtained a permit is misplaced. Friday’s event will begin in a public park, travel via public sidewalks to a public building, and then return. The Supreme Court has long found that citizens’ freedom of expression is most protected in precisely these areas of public forum.
As early as 1939, the Court noted that streets and parks are “held in trust for the use of the public” and have traditionally been used “for purposes of assembly, communicating thought between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Hague v. C.I.O., 307 U.S. 496, 515 (1939).
In the years since, the Court has occasionally upheld certain narrowly drawn restrictions on the precise time, place, and manner in which citizens may exercise their rights—for instance, allowing municipalities to require permits if an event will block traffic. However, marchers on sidewalks are almost always constitutionally protected even without a permit.
Additionally, Marhoney’s statement about OneFargo organizers being liable for any damage not only discourages citizens from utilizing their First Amendment rights to protest and assemble, but also directly contradicts well-established Supreme Court precedent. In NAACP v. Claiborne Hardware Co., the United States Supreme Court has made clear that organizers of events cannot be civilly liable for the actions of protestors at these events unless the organizers are both aware of and authorized the destructive behavior. The Court warned that “[t]o impose liability without a finding that the [organizers] authorized — either actually or apparently — or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment.”
“Before making additional statements that could discourage Fargo citizens from exercising their constitutional rights, Mayor Mahoney should remember that the rights of political association are fragile enough without adding the additional threat of destruction by lawsuit,” DeKrey said.
While conversations with elected officials are important for change, it must also involve the entire community and starting a citywide dialogue. The ACLU of North Dakota supports OneFargo’s efforts to take their demands to the streets until their calls for reform are addressed.
“The histories of America’s civil rights movements – and their successes in securing equal protection of the law for those denied it – have always been shaped by the complex interweaving of legal victories, political progress and advances in public opinion,” DeKrey said. “Real, lasting change is not just granted from our public officials. Change is rooted in our neighborhoods, where the people who bear the burden of oppression and dehumanization nurture the belief that the world could be different and grow those beliefs into movements.”
IF YOU GO
WHAT: OneFargo Juneteenth March and Rally
WHEN: 9 a.m. to 12 p.m. Friday, June 19.
WHERE: Island Park
About the ACLU of North Dakota
The American Civil Liberties Union of North Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of North Dakota is part of a three-state chapter that also includes South Dakota and Wyoming. The team in North Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ communities. The ACLU of North Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of North Dakota.