Protests: Balancing First Amendment Rights and Public Safety

In today’s society, peaceful protests can occasionally escalate into unlawful rioting. The behavior of those involved in a demonstration or public gathering can vary greatly. This behavior includes: 

  • Peaceful protests, actions, and speech that are lawful and protected by the Constitution; 

  • Civil disobedience, which typically involves minor criminal acts; and 

  • Rioting associated with behaviors such as collective violence, looting, arson, destruction of property, and other unlawful behaviors. 

Complicating matters, it is possible for all these behaviors to occur during the same event. However, rioting is different from peaceful protests or civil disobedience. For example, not long ago in Atlanta, Georgia, a peaceful protest quickly changed to rioting when people began throwing bricks at buildings and setting fire to police cruisers resulting in the arrests of several people. Often, when a peaceful protest escalates into unlawful riots, there is a specific trigger and a tipping point that gains widespread media attention. 

Consequently, the use of open-source intelligence (OSINT) and social media can also play an important role in obtaining information in advance of protests, especially those with a history of violence. By monitoring social media and other open sources, authorities can gather valuable intelligence and make informed decisions about their response. OSINT can provide insight into the motives, objectives, and tactics of protest groups, enabling public safety planners to better prepare for and respond to potential threats. By leveraging the power of technology, OSINT can be a valuable tool in helping to maintain peace and prevent loss of life and property during protests.

Multi-Agency Command Center (MACC)

A Multi-Agency Command Center (MACC) is a centralized control center that brings together multiple agencies to manage and respond to incidents and potential threats. The financing for MACCs can come from different sources like federal, state, and local government agencies, as well as private sector organizations. However, the funding and jurisdiction for each MACC can differ based on the jurisdiction’s specific needs and resources. The National Incident Management System (NIMS), which aims to manage incidents in a consistent and coordinated manner, plays a role in establishing formal MACCs and provides a standardized structure for incident management across all levels of government. In other words, MACCs are established following NIMS principles and guidelines. Moreover, the National Special Security Event planning structure outlined in the 2013 Presidential Policy Directive 22 (PPD 22) further supports establishing a MACC for large-scale events, such as major sporting events, national political conventions, and other high-profile gatherings. 

The authority for setting up MACCs also varies by jurisdiction – sometimes established by a local government and sometimes at the state or federal level. The specific authority for a MACC depends on the jurisdiction’s legal and regulatory framework. In each case, the MACC brings together various agencies to manage and respond to incidents, including but not limited to: 

  • Law enforcement (local, state, federal)  

  • Fire department 

  • Emergency medical services 

  • Transportation department(s) 

  • Mayor’s office 

  • State 

  • Federal 

  • Public relations 

  • National Guard  

The primary goal of a MACC is to provide a unified and coordinated response to potential threats and incidents that ensures the safety and well-being of all those involved. 

A (MACC) should be activated – with the goal of maintaining peace and preventing the loss of life and property – when protests have the potential to escalate into large-scale riots. For instance, the Minnesota MAAC was activated during the civil unrest in response to the murder of George Floyd by a Minneapolis police officer in 2020. A noteworthy external review of the Minnesota response in 2022 asserted that the setup and coordination of the MACC started too late. In recent years, there has been an increase in high-profile rioting and civil unrest in cities across the United States and the world. The increase has been attributed to factors such as government corruption, social and economic issues, police brutality, and political polarization. The likelihood of future riots persists, making it imperative for jurisdictions to be thoroughly prepared.

Effective communication and strong relationships within the Multi-Agency Command Center are essential to maintain trust and confidence among members.

Importantly, members of the MACC come from various disciplines with distinct roles and responsibilities in responding to civil unrest. For instance, the transportation department helps with road closures, the fire department extinguishes fires, emergency medical services provide medical assistance to injured individuals, and law enforcement addresses the unrest and makes arrests when necessary. However, these various disciplines represented in the MACC may not fully understand the intricate balance that law enforcement must strike between upholding First Amendment rights and preserving public order. In addition, when a formal MACC is not an option, due to financial resources or jurisdictional complications such as the size of the locality, it is important to consider alternative options, such as a crisis command center. This type of center can provide similar benefits, such as effective coordination, information sharing, and communication, even in smaller or less resourced communities.

The Complexity of Responding to Protests and Riots

The First Amendment in the Bill of Rights clearly articulates, “Congress shall make no law…abridging freedom of speech.” While the words in the founding document are straightforward, it is not surprising that there are legitimate limitations to freedom of speech. For instance, if demonstrators at a public gathering entered occupied buildings and shouted “Fire!” when there was no fire, this would not be considered protected speech and would warrant a police response due to the potential safety hazard it presents. 

Law enforcement, though, cannot intervene in most incidents if protesters burn the American flag. The Supreme Court has ruled that flag desecration, whether through burning or other means, is a form of free speech protected by the First Amendment. Flag burning has the potential to elicit a strong reaction from those who hold the national symbol in high regard, leading to potential confrontations with counter-protesters. However, the Supreme Court has determined that the mere outrage of those who disagree with flag burning is insufficient grounds for suppressing speech through police action (Texas v. Johnson, 1989). This highlights the complexity of responding to protests and riots for law enforcement. 

There is also ongoing debate surrounding the ability of police to protect citizens effectively during riots. In particular, recent laws and regulations limiting police use of force during riots and protests have been established, with some jurisdictions even restricting the use of tear gas, rubber bullets, and other less-lethal weapons. The effectiveness of these laws in protecting citizens during demonstrations remains a topic of heated debate among politicians, police organizations, and activist organizations. Nevertheless, community policing and community relations are essential in preparing for potential threats during a riot, despite the limitations of a jurisdiction’s response abilities. Building strong connections with diverse groups and being knowledgeable about their history, including past instances of violence, helps make informed decisions for effective responses. 

Effective Communication & Preparation for Protests

Given the legal complexities surrounding police response to protests and riots, it is crucial for effective communication within the MACC. Effective communication and strong relationships within the group are essential to maintain trust and confidence among members. For instance, if a fire department member thinks that the ignition of a fire and the burning of the flag require a police response, but the police do not act, this could erode trust and cooperation within the team. 

Due to the legal complexities surrounding the response to protests and riots, officers might exercise caution in preventing escalation, which could seem unreasonable to some members of the MACC. However, this caution is necessary to protect protesters’ First Amendment rights and abide by legal precedents. To effectively address the complexities of responding to public gatherings with the potential to turn into riots, it is crucial for the MACC team to conduct tabletop exercises. Engaging in simulated scenarios through tabletop exercises such as multi-agency-led, senior leadership level, operational level, and functional exercises can help identify, plan for, and address potential public safety concerns that may arise in the future. 

Law enforcement and MACC members should have a plan to deal with protests well before a protest begins. The plan and policies should guide law enforcement and MACC members on their respective responsibilities. MACC members should be aware that law enforcement has the additional duty to uphold protestors’ constitutional rights and protect others from violence. These dual and sometimes competing roles necessitate that law enforcement and MACC members be trained to recognize First Amendment issues and respond appropriately based on their jurisdiction’s laws. 

Moreover, law enforcement and MACC members need to be able to communicate with each other about the reasons for various decisions, especially if they seem counterintuitive, such as flag burning. In summary, finding the right balance between the legal requirements of free speech and public safety is a complex and evolving undertaking. Still, it is vital for maintaining order and complying with the law. 

Matthew Loeslie
Matthew Loeslie

Dr. Matthew Loeslie is an Assistant Professor at Minnesota State University, Mankato. He has also held several leadership positions in academia, including academic dean at a community and technical college, program director of the criminal justice program at a state university, and faculty member. Additionally, Matthew has extensive experience in emergency response and training, having served as the training manager for the Minnesota Emergency Response and Industrial Training (MERIT) Center and worked as a police officer and trainer in Minnesota. He holds a Doctor of Criminal Justice from the California University of Pennsylvania, a Master of Arts in Criminal Justice Leadership from Concordia University-St. Paul, and a Bachelor of Science in Sociology from South Dakota State University.



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