Unlawful assembly versus the First Amendment

“Congress shall make no law abridging the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.”

Many of those arrested in the city of Tampa during last night’s protests were charged solely with a violation of Florida Statutes section 870.02, or unlawful assembly. Unlawful assembly is defined as three or more persons meeting together to commit a breach of the peace, or to do any other unlawful act. The Florida Supreme Court upheld the constitutionality of 870.02 as it relates to the First Amendment in 1977 in State v. Simpson, 347 So. 2d 414. In doing so, the Court utilized the common law definition of “breach of the peace” to overturn the dismissal of charges against three defendants in Pinellas County.

Notably, the Court found that the law allows prosecution of those with a common unlawful purpose whose assembly caused rational, firm, and courageous persons in the neighborhood of the assembly a well-founded fear of a breach of the peace. From a practical perspective, the State would need to show that defendants arrested for unlawful assembly were acting so irrationally as to cause members of the community to fear for their safety. I doubt that the police officers who arrested the protesters could qualify as offended members of the neighborhood, so long as the defendants were not actively threatening the police or inciting others to commit violence.

The elected State Attorney, Andrew Warren, is asking voters to return him to the county’s chief prosecutor position in November. Even though there will be political pressure to convey a message of law and order, I suspect that each of these prosecutions will be quietly dismissed in the weeks to come. The Tampa Police Department and other local agencies will have to decide for themselves if arresting protesters meets their goal of winning back the trust of the community, if that goal existed in the first place.

I feel that the dissenting words of Justice Joseph Boyd in Simpson are particularly instructive: “If a group of people should congregate that is their right. If they talk among themselves their speech is protected. Even if they discuss ideas which are repugnant to the community and express violent or otherwise distasteful desires, their assembly and speech remain protected. Only when their speech goes beyond the communication of ideas and becomes a criminal act, such as the incitement of others to imminent violence or the formation of a criminal conspiracy, does it lose its protection. If the generalized expressions of those assembled become specific and threatening, or if the individuals exercise their rights of assembly and speech in an unduly loud or obtrusive manner, then the law becomes effective to prevent them. Otherwise they are within the protection of the First Amendment.” He felt that if the government could prove that the unlawful assembly was to prepare for the commission of other, more serious acts, then the government should just go ahead and charge individuals with the conspiracy to commit those acts or the acts themselves. That most of the protesters were not charged with additional offenses tells you all you need to know.