Roberto Schmidt / AFP via Getty Images
These troubling times will teach us a lot of lessons, the most obvious is that we must end the demonization of Black protest.
In the context of last summer’s George Floyd protests and decades of police brutality against peaceful protesters, there was something recognizably different about the Trump insurrection to even casual observers. Where were the rows upon rows of police in military gear? Where were the barricades? The armored cars and helicopters?
This contrast is rightfully underscored when we look at the racial messages and prevalent racial demographics of January 6th and the George Floyd protests. “If those people were Black, they would have been shot halfway up the steps,” people took to social media to exclaim. “How are these white people - these terrorists - just walking out of the building like nothing happened?” they asked.
The Article 20 Network has been reflecting on what we know about the events of January 6th as compared to the George Floyd protests through the lens of the freedom of peaceful assembly. While more information comes to light every day and much is still unknown, we are sharing some of our conclusions, most of which will come as no surprise to regular observers of First Amendment rights.
The threshold for arrest is much lower for Black protesters.
Over 15,000 arrests were made during the George Floyd protests. The overwhelming number of arrests were for frivolous and subjective charges like “disturbing the peace” and “disorderly conduct”. Because such charges are frequently dismissed in court, it’s difficult to make an argument that prosecuting these offenses benefits the public’s safety.
What these petty charges do achieve is removing protesters from the streets and dampening the growth or proliferation of protests. When police start rounding up protesters, it creates a chilling effect on the practice of assembly. Allies will be less likely to join in public assembly if there’s a real risk of arrest.
The arrests of the January 6th insurrectionists have been targeted and a result of law enforcement officials analyzing images and videos. While the insurrectionists’ offenses are far greater than anything we saw last summer, their charges, like “trespassing”, sound the same. There is no equal justice when comparing the racial experiences of protest in the United States.
Black organizers carry a heavier burden of responsibility.
The overwhelming majority of the George Floyd protests were carefully planned to maintain the peace. In some instances, opportunists – including Trump supporters – took advantage of the uncertainty inherent in large urban crowds to steal, destroy property, and attack law enforcement. These rioting and looting incidences were magnified and held up as justification for unnecessary and disproportionate police responses, activation of federal agents against peaceful protesters, and a widespread message that Black Lives Matter were violent thugs.
Any organizer of peaceful demonstrations will tell you the great lengths they go to maintain the peace and how wrenching it is when your peaceful protest is co-opted by troublemakers. It is also very difficult to maintain the peace when they are greeted by police using military equipment and behaviors, which is innately antagonistic.
Black organizers are held responsible for everyone, including those that take advantage of their hard work.
The Trump insurrection, on the other hand, was organized from the beginning as a violent uprising against anyone in the US Government that stood in the way of Donald Trump’s challenge of the 2020 election results. The organizers did not fail to uphold the peace; what we saw on our screens that day was precisely what they planned. Their rhetoric and aims were clearly stated on social media. Even the FBI warned that they were planning a “war”.
Law enforcement officials can ignore training and policy manuals to suit their own agenda.
In the absence of regular briefings from the federal government on why Capitol security failed, we are left to draw conclusions from the images, videos, and first-hand accounts available. Those depict a Capitol police force that was at times overwhelmed and, other times, aiding (opening gates, standing down) and abetting (fist bumps, selfies) the insurrection.
This law enforcement response calls into question the value of training when it can be willfully ignored.
Remember, George Floyd’s murderer, Minneapolis police officer Derek Chauvin, took part in de-escalation training and racial bias training. Yet he had 18 complaints and was disciplined multiple times. Forcing his knee down on Floyd’s throat for over eight minutes was in contradiction with the training he had received and the policies he was beholden to. Curiously, a widely espoused policy solution was that police officers need more training.
Now, in the wake of the security failure on Capitol Hill, where are the calls for more police training and revised policy manuals? Because training addresses this failure of law enforcement no better than those that sparked the Black Lives Matter protests.
Orders to disperse are tools of public safety used as tools of oppression
Per international norms, the freedom of assembly is an individual human right and, as a result, when violent or destructive protesters are arrested, the peaceful protesters maintain their rights. An order to disperse a crowd exercising their constitutional rights should be reserved for the worst-case scenarios: when all other attempts to protect the public or property have been exhausted.
During the George Floyd protests, many Americans’ assembly rights were infringed upon because law enforcement commanders ordered crowds to disperse prematurely. Many instances were not even preceded by a threat to public safety.
In the footage we have all watched from January 6th, there is no evidence of law enforcement ordering the crowd to disperse even after police officers and journalists were assaulted and, unbelievably, after violent insurrectionists breached the United States Capitol. In fact, it was jarring that so many insurrectionists were walking out of the Capitol - as casually as if they were coming from the gift shop - then permitted to mill about the Capitol grounds.
We can conclude that orders to disperse are selectively used for public safety purposes. Or we can conclude that they are used precisely when the police want to oppress Black voices and Black people.
The freedom to “peaceably assemble” does not protect violence and, knowing that white supremacy is violence, we need a national dialogue about the First Amendment.
While the founding fathers were not opposed to disruptive protest, that clearly laid down in the First Amendment that they were only protecting public assemblies that were peaceful - that violence played no part in resolving differences in a democracy. Public terror and oppression are anathema to the democracy envisioned for the United States.
Older than the tradition of public assemblies in the United States is the tradition of white supremacy. While it’s founding was a great leap for civic rights and a turning point for self-governance, it depended on white supremacist genocide and slavery. These contradictory themes are the uniquely American story and will periodically collide, as they did Charlottesville in 2017.
Contemporary white supremacy, on display in the Trump insurrection’s signs and flags, does not exist in a bubble; it is backed by four centuries of this unimaginable cruelty and domination. . acial oppressors calling for more racial oppression on the heels of four centuries of racial oppression naturally causes real harm to Black Americans and people of color. It is hard to argue that white supremacist speech is “peaceful”.
Darren Walker at the Ford Foundation writes, “the ideal of democracy is the greatest threat to the ideology of white supremacy; neither can long endure in the presence of the other. That is why today—and every day—we must renew our commitment to protect our democratic values and institutions from all enemies, foreign and domestic, especially those falsely disguised as patriots.”
If the United States was capable of having a civil conversation about anything, let alone a topic about the open wound of race, first on its list should be about whether white supremacy should, like “fighting words”, be an exemption from protected speech. It’s an unresolved conversation within the Article 20 Network as well; we all feel uncomfortable when we’re asked “Do you support free assembly rights for the Ku Klux Klan and the Proud Boys?” Some of us argue that, in the democratic tradition, the answer would be more expression, more speech, more protest.
Every facet of American life has been disrupted by the Trump presidency. Institutions, traditions, and behavioral norms have been shaken, including the freedom of assembly. Peaceful protesters are coming out in greater numbers, but they do so at much higher risk. All of the observations we have made in comparing the Trump insurrection with the George Floyd protests are unsurprisingly about race. These troubling times will teach us a lot of lessons, the most obvious is that we must end the demonization of Black protest.