Truckers and the Right to Protest

When does a First Amendment protest become an unlawful assembly?

The lessons of the Canadian Freedom Convoy will be rebounding across the world for a long time to come.  Who would have thought that Canada, of all places, would be able to fall victim to fascism, with any semblance of the rule of law thrown blithely out the window?  The concept of any single leader, on his own sole authority, being able to simply decree the confiscation of the property and bank accounts of his political enemies is enough to have any nation turfed headlong out of membership in the Free World.

Consider the context of the United States: the President simply cannot do that.  Although Congress could pass a law to, say, confiscate the bank accounts of those voting for Mr. Trump; the Supreme Court would instantly find this unconstitutional, violating the rule of law, equal protection of law, and any number of the amendments that make up the Bill of Rights.

Constitutional rights do not apply to non-citizens, of course.  That is why it would be Constitutional for America to pass a law allowing the President to sieze property belonging to Russian oligarchs on his own initiative, sell it, and turn the  money over to Ukraine.  Even there, though, the President can't do that on his own unless war has been declared, which must itself be done by Congress.

Canada, however, has no ultimate authority like our Constitution, and apparently those who set up the Emergencies Act had a rather sunnier view of human nature than our explicitly cynical and suspicious Founders.  So, Justin Trudeau managed to make himself a dictator, for a few days at least.

And then, as quickly as Fascist Canada came, it sort of went, with the "emergency" powers being relinquished before either the legislature or the courts had a chance to stand in their way.  This may seen altruistic, but it had the deeply corrosive result of establishing the precedent that a Prime Minister can do this - after all, no governing authority or court ever said he couldn't!  So next time, it'll be much easier to do and far harder to stop.

But this article isn't about the wickedness, hypocrisy, and cowardice of Blackface Justin.  Rather, let's talk about protesting.

Disruption and Conflicting Rights

First, let's be clear that legitimate protests never involve violence of any kind.  The "mostly peaceful" protests of BLM burned down entire city blocks and murdered at least two dozen innocents.  The January 6 rioters killed nobody - the only apparent wilful death was an unarmed female military veteran gunned down by a Capitol Hill cop - but, as far from being an insurrection as it was, nevertheless there was genuine damage done to both the Capitol and to the police.  We don't defend such actions.

As far as we can tell, nothing of the sort took place in Ottawa.  The Freedom Convoy was, in truth, an entirely peaceful protest.

Does that mean it did no harm?  Well, no.  The famous honking surely did disturb the sleep of Ottawa residents, even after it ended.  It can't help but have hurt the incomes of local businesses, with area streets gridlocked.  No doubt there were ordinary citizens who were unable to reach their jobs and thus lost pay.

Ever since the 1960s, most conservatives have taken a dim view of protesters.  In response to the violence and disruption of BLM, several state legislatures have gone so far as to consider laws legalizing running over protesters blocking your car.

This puts us into dangerous territory.  There are many examples of people who, following the letter of the law, stopped their vehicle in the face of an angry mob, and paid a dire price when they were attacked.  Way back in 1992, during the Rodney King riots, Reginald Denny was dragged from his truck and beaten nearly to death.  Since he was driving a dump truck filled with sand, he surely could have floored it, pulped the mob in his way, and escaped uninjured - but he didn't, to his permanent suffering.

Three decades later, in a similar situation, Jared Lafer took no such chances: surrounded with his family by BLM "demonstrators", he hoofed it out of Dodge, sending two of them to the hospital.  He wisely went straight home and immediately retained an attorney; a grand jury refused to indict him considering there was no evidence that he'd done anything unreasonable at the time.

It's not always just happenstance that protesters find themselves in the path of cars though, sometimes it's with malice aforethought.  Extinction Rebellion is notorious for chaining themselves across busy freeways, causing gridlock for hours to the insensate rage of trapped commuters.  The police carefully and delicately cut through the chains to safely remove the protesters, after wasting the day for thousands of innocents.

Generally, while we support the right to protest, we don't believe it should severely hamper the ordinary lives of ordinary people.  What then of the trucker protest on the Ambassador Bridge between Michigan and Ontario?  The Canadian truckers did, in principle, exactly the same thing as Extinction Rebellion: they blocked an essential transportation artery to ordinary traffic for an extended period of time.

As conservatives who believe in the rule of law, it is a core principle that the laws must be evenhanded, must be designed to be so, and at all costs, must be enforced in an evenhanded manner.  Otherwise you have no rule of law, but the whims of people in authority, who will almost always be someone you disagree with.

If one person has the right to protest in a particular way for a cause we believe in, therefore, we must equally allow another person to protest in the same way for a cause we abhor.

What, then, are principles for protesting that we can support no matter the cause?  Let's take a crack at some proposals.

1. Warning, Planning, and Protection

There is a longstanding practice for what might be called "formal" protesting - you notify the local police of the time and location and apply for some sort of a permit.  Most jurisdictions will have a police official sit down with the protest organizers, map out the route of the protest, plan for how attendees will arrive and depart, determine where events will occur, and so on.  Then, the police will know what roads and plazas will be blocked off when, and will announce this to the public.

The annual Right to Life march in Washington DC is a spectacular example.  Everyone knows exactly when it will occur each year; everyone knows that Pennsylvania Avenue and other major arteries will be closed for many hours; everyone knows that the surrounding streets will be jammed with buses loading and unloading at designated marshaling points.  None of this happens by accident, and nothing occurs to surprise anyone.  If you don't want to be surrounded by millions of marchers, you simply find somewhere else to be on that day.

There's no reason why BLM, the Sierra Club, Super Happy Fun America, or the KKK couldn't do exactly the same thing.  Where we run into problems is when a given jurisdiction attempts to block a particular protest because they don't like their message, which generally winds them up in court.

Another key role of the police is to keep two opposing sides apart.  Sometimes that works tolerably well: the City of Boston loathes the socially-conservative views of Super Happy Fun America, but did keep them from being beaten to a pulp by their opposition.

In Portland Oregon, in contrast, a patriotic-themed rally experienced "Antifa ... throwing explosives in the process after launching an attack."  Several of the rallyers were arrested; no Antifa were, despite being mad bombers.  The conservatives are suing the city, mayor, and DA, though given that it's Portland Oregon, we can guess how successful that will be.

This is wrong: we despise the political views of basically every elected official in Boston, but they seem to have at least tried to do their job.  Portland would just as soon see conservatives hauled away in body bags, which is straight-up evil and should land them in jail for malfeasance in public office.

Obviously, if you believe that the police will attempt to set you up to be slaughtered by your enemies - as appears to have happened in Charlottesville VA - you aren't going to be inclined to tell them of your plans.  You'll try to organize in secret, then pop up unannounced.

Even worse is when a protest tries to follow the rules and work with the police but is flatly turned down.  This just happened to the "People's Convoy", the American equivalent of the Canadian truckers - the far-left D.C. government denied a permit for organized demonstration downtown.

This unConstitutional and evil misgovernance was dangerous and stupid: the protest continued on regardless, as they had every Constitutional right to do, but without the safety protections of police barricades and traffic control.  The obvious reason, of course, was because the lunatics who run local D.C. government, Democrats if not communists to a (wo)man, want conservatives to look as bad as possible, and know that their blood brothers in the mainstream media will join in the effort to accomplish this.

If we needed any more reasons why D.C. has no business being a state, this provides one: having a one-party state is nothing but corrosive corruption.  Even in a state like New York or California, there likely would be a judge somewhere with some residual sense of justice, who would order the city to facilitate a First Amendment protest and hold them to account - but in D.C., not so.

To return to our past safer modes of protesting, government must play fair.  Today, in many places, it doesn't; that must cease.  As JFK said, if you make peaceful revolution impossible you'll make violent revolution inevitable - and exactly the same is true with protests.

2. Appropriate Targets, Limited Damage

By definition, public protest is outside of the norms of behavior.  Most people want to live their lives and enjoy their families without marching around waving signs and shouting like banshees.  It is not possible to have a protest that'll have any real effect without causing some level of disruption.  On the other hand, it is not fair to people who don't choose to participate in the protest for their lives to be totally upended.

What should be the appropriate balance?  That's where well-regulated, even-handed policing comes in.  If a street is blocked off for a protest and announced in advance, then everyone else has fair warning to travel a few streets over or come into their offices the back way.  They won't get suddenly trapped without warning in an angry mob such as BLM and environmentalist protests specialize in.

However, this assumes protests of a normal length - say, a few hours, no longer than a day.  What about protests that are intended to be longer term, like the Freedom Convoy?  In effect, they occupied downtown Ottawa for weeks.

Here's where the target becomes relevant: Ottawa is the capital of Canada.  It's perfectly reasonable for that locale to be far more the focus of protest in a way that other towns and cities are not.

Similarly, there are many more protests and marches in Washington, D.C. than elsewhere.  To an extent, D.C. is designed for protests: the Mall is a large, flat, open area where vast numbers of people can gather and shout their hearts out without seriously getting in the way of the indifferent.

The higher percentage of government employment a given city has, the higher the legitimate impact of a protest can be - both because it's a more fair target, and because the personal consequences of nonparticipants are less.  For big protests in Washington, D.C., career bureaucrats know to work from home; they lose nothing and are impacted minimally if at all.  Even if they were prevented from working, that would be little if any harm to anyone, and they'd still get paid.

That's not the case in a place where things happen that actually matter.  When environmentalists try to block access to a seaport or shipping facility, that directly impacts many people's lives and livelihoods.  Same for when they block a commuting highway used by non-government-employees.  Perhaps the worst such impact is protests at airports - not only are airline delays vastly costly, but they directly foul up the lives of thousands of innocents.

So we see that, the closer to a source of government, the more legitimate and inherently less harmful the disruption of a protest becomes and the more should be tolerated.  The further from government, the less warning and more collateral damage; tolerance should be correspondingly less.

When we saw mounted Ottawa police charging into protest throngs and trampling grandmas in walkers, we saw something that should never been seen in any country claiming to be a member of the Free World.  The protesters were doing no harm to anything save government, as is their inherent right as a free people.

That doesn't apply to Extinction Rebellion chaining themselves across some random highway used by ordinary people; while mashing them into the concrete with a police van seems extreme, there's no need for cops to use anything but the swiftest method of clearing them out of the right-of-way.  In like fashion, when the Canadian police towed away the trucks blockading the Ambassador Bridge, they were legitimately doing their job - if anything, they showed exemplary restraint and patience.

We condemn the Ottawa police; we commend their Ontario colleagues, even though we generally support the Freedom Convoy that both were deployed against.  Good policing matters, and when properly handled, can earn and buttress respect from all citizens.

As the saying goes, one man's terrorist is another man's freedom fighter.  If we are to live in a free country, we must come up with rules to regulate and organize dissent that can be applied fairly on all sides.

And if we can't, well, we won't be a free nation much longer, if we even still are.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments

One thought I've had since the Canadian trucker protest isle hear how it disrupted business's and peoples lives. But didn't the lockdowns already do that? The only difference is the horn honking they did. Everything else Trudeau had done.

March 30, 2022 12:16 AM

One issue with the government vs. non-government heuristic is that the target of the environmentalists' disruptions are relevant to their agenda in a way that is not the case for other causes on left and right. Regardless of your views on AGW, the climate change activists believe that ports and highways are causing part of the problem they want solved.

May 21, 2022 5:30 PM
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