Dozens of legitimate protesters have been arrested in Ferguson, Mo., for essentially doing it wrong, which can be variously described as protesting about issues of race, refusing to stop protesting about issues of race, and in many cases, perhaps most outrageously, protesting while black.
It's virtually impossible to square the law enforcement definition of illegal protest with the snuggly warm vision of political protest put forth by a unanimous Supreme Court only two months ago in McCullen vs. Coakley. That was the case in which the high court struck down a Massachusetts law barring any protests within 35 feet of an abortion clinic. That law was passed after two clinic workers were shot and killed at clinics in 1994.
One of the reasons the court saw the need to overturn it, permitting antiabortion activists to speak freely within the "buffer zone" around clinics, was that public streets and sidewalks are the sole remaining spaces in which the peaceful and open free exchange of ideas can occur, and that must be protected.
As Chief Justice John Roberts put in his lead opinion in McCullen: "Consistent with the traditionally open character of public streets and sidewalks, we have held that the government's ability to restrict speech in such locations is very limited." After all, "an individual confronted with an uncomfortable message can always turn the page, change the channel, or leave the website. Not so on public streets and sidewalks."
But there is a crucial difference between the abortion opponents whose speech rights were feted by the court in McCullen and the garden variety protesters who can still be rounded up in free speech pens and summarily arrested on the streets of Ferguson: The court was careful to explain that the protesters in Massachusetts are not actually "protesters." They are "counselors."
This presents an obvious solution for the outraged citizens who have taken to the streets of Ferguson and been met with tear gas, rubber bullets, and incarceration: rebranding. From this day forth you should consider yourself "sidewalk counselors."
In the abortion clinic context, counselors are the people who have the goal of providing a message to women entering the clinics that abortion is bad. These people, the court asserts "are not protesters." We'll know them when we see them, because they might pass out literature instead of carrying signs. They have a "caring demeanor," a "calm tone of voice," and "maintain direct eye contact."
You might be asking yourself: Why do these things matter? Both protesters and counselors are assembling to express a message about which they feel strongly. That's cute. The critical thing about being a free speech-protected "counselor" instead of a less free speech-protected "protester," you see, is that the court recognizes that as a counselor, you have important information that you need to deliver to your audience and apparently some kind of magic inherent wisdom that your audience would benefit from hearing.
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A protester, on the other hand, can be pushed back from his desired location or corralled into a "free speech zone." Presumably this is because what protesters have to say is less urgent or informed. As described by Justice Samuel Alito in his McCullen concurrence, "counselors" are even better read than the women they counsel. A counselor, thus, can't be banished to a remote island location because that really gets in the way of all that important counseling. Follow? We don't either.
Which brings us to 90-year-old Hedy Epstein, a Holocaust survivor arrested last week in St. Louis for "failing to disperse." On the face of it, she looks an awful lot like Eleanor McCullen, the "gentle sidewalk counselor" whose desire to teach and persuade her fellow citizens was granted so much solicitude by the court in the case that bears her name. Like McCullen, Epstein had an explicit political message to impart: She wanted National Guard troops out of Ferguson and a special prosecutor appointed to investigate the killing of Michael Brown. It's hard to credit this message as less important, less informed or informative, or less urgent than McCullen's. And Epstein's crime, failing to disperse, is precisely the behavior granted First Amendment protection in McCullen.
Opponents of the Ferguson protests will say that once the protesting is conflated with looting, it's fine for the police to step in. But it can't possibly be the case that the Massachusetts abortion law — enacted after actual killings happened at abortion clinics — is less necessary than the squelching of looters. The bulk of the protesters are no more looters than the bulk of abortion protesters are murderers.
Reasonable minds can and have differed on whether the court's decision in McCullen was correct (in fact, the two of us view McCullen quite differently). But there is surely agreement that the same rules need to apply to all protest regardless of who is speaking and what is being said.
Dahlia Lithwick writes about the courts and the law for Slate. Sonja West is an associate professor at the University of Georgia School of Law. © 2014 Slate