Spectrum of Action, Assembly, and Protest from Peaceful to Violent

25 min readSep 15, 2017

This informal paper proposes a model of a spectrum of action, assembly, and protest from peaceful assembly to force and violence, some of which is constitutionally protected and some of which is not. Unfortunately there is no great clarity as to where the bright line is between what forms of action, assembly, and protest are legal and protected and which are illegal and not protected.

While free speech and peaceful assembly are constitutionally-protected and respected rights, use of force and violence are not protected by the First Amendment, but there is no legal clarity as to how much force or even disruption is legal and protected. Ultimately, it is up to the discretion of law enforcement, prosecutors, and the courts to weigh in, on a case by case basis.

How angry can a group get and still be considered peaceful? When does a peaceful assembly take on the character of an angry mob? Again, it becomes a discretionary call by law enforcement, sometimes allowing a crowd to turn into a riot and sometimes disrupting a passionate but nominally peaceful protest.

At a minimum, most people would agree and recognize the endpoints of the spectrum, peaceful on the good end and violent on the bad end. The gradations in between are more murky, problematic, and subjective, but this paper attempts to lay out one model for the wide range in the middle of the spectrum.

Caveat: I am not a lawyer

This is a very important caveat: as they say on the Internet, IANAL — I Am Not A Lawyer, so none of what I say with regard to legal matters should be treated as gospel and certainly not treated as specific legal advice. When in doubt, consult an attorney. Even when you think you have NO doubt, consulting an attorney is a really good idea.

I know my rights!

It annoys and saddens me to hear people vociferously protest that they “know” their rights. The mere act of making such a statement strongly suggests that they probably don’t have a very precise knowledge of their rights. Maybe they know SOME of their rights, but so frequently people have fairly dramatic MISCONCEPTIONS of their rights, in both a positive and negative manner.

When in doubt, check with the ACLU

The American Civil Liberties Union (ACLU) is pretty good about posting clear and credible advice about your civil liberties and rights.

In short, make sure you check the ACLU web site before yelling that you know your rights — ACLU Know Your Rights.

Action

In terms of assembly and protest, the term action is commonly interpreted as any activity performed to convey a message. Common forms of action include:

Marches
Parades
Rallies
Protests
Sit-ins
Strikes
Work stoppages
Sickouts

Assembly

Assembly is commonly interpreted as any number of people coming together in a location for the purposes of an action, such as a march, rally, or protest.

Technically, even a civic parade, spiritual meeting, group picnic, or company outing would constitute assembly, but this paper is mostly focused on assembly for the purpose of protest.

Spectrum of action, assembly, and protest

Let’s get directly to the promised spectrum.

This informal paper proposes a model for characterizing the general tone and effect of actions, assemblies, and protests, arranged in a spectrum, starting with peaceful action, peaceful assembly, and peaceful protest, and ending with violence if not outright rioting, with rising tension and negative effects as you progress through the spectrum:

Peaceful — calm and compatible with daily life of others.
Energetic but calm discussion — polite interaction.
Peaceful disruption — minor interference, not seen as threatening, relatively polite.
Modest disruption — seen as a bit unfriendly.
Anxious — risk of escalation, risk of manipulation and provocation.
Strained speech — anxious tone and gesturing.
Agitated — risk of escalating to force or violence, risk of manipulation and provocation.
Animated discussion — rising passion, but tolerable by all but the intolerant.
Angry — risk of losing control, risk of manipulation and provocation.
Angry discussion — rising tension, tempers starting to flare.
Moderate disruption — seen as significant interference, but not terribly threatening.
Intimidation — instilling fear in others, discouraging and seeking to preclude legitimate actions by others.
Provocation — seeking escalation, incitement.
Threatening — inciting fear, threat of imminent action, force, or violence.
Agitated movement — feels like a precursor to force and violence even if no conscious intent.
Excessive disruption — barring entrance or passage by others attempting to go about their daily lives.
Extreme disruption — trapping individuals in an area and preventing their escape, restraining movement.
Confrontation — refusal to avoid conflict, deescalate, or defuse volatile situations, seeking to provoke a violent reaction.
Forceful — coercing or compelling others using physical force, but short of violence.
Chaos — out of control, possibly isolated violence, risk of wholesale violence.
Violent — but has not yet caused more than fairly minor damage or harm, such as showing objects with little effect and pushing, shoving, pulling, and a few kicks or weakly thrown punches — could be simply blowing off steam or immediate precursor to severe violence
Violent — damage to property — modest to moderate.
Violent — harm to others — but relatively treatable.
Rioting — wholesale violence — damage, harm, looting.
Destruction of property — severe damage, arson.
Serious harm to others — requiring significant medical intervention.
Death.

This proposed spectrum is not intended to be absolutely definitive and absolutely comprehensive, but a decent stab at being relatively definitive and relatively comprehensive. Additions, clarifications, and comments are welcome.

Progression on the spectrum

Individuals and groups may have a specific agenda as to where on the spectrum they wish their action to be, or they may start with a relatively mild and peaceful action which escalates as the action proceeds and events unfold.

Factors that could drive any progression include:

Intent by the organizers.
Influence by others outside the group.
Interactions with law enforcement.
Instigation by embedded provocateurs.
Lack of control by the organizers.

Role of civility

Generally speaking, one would normally expect all social activities to be civil, for all parties to show a sense of civility, but that is not always the case, and not legally mandated either.

See a companion paper, What is a Civil Society (Civility)?, for a discussion of civility.

Some of can deplore the too-frequent lack of civility, while others may revel in it.

It is what it is, but we should all endeavor to pursue civility as a first and best choice, unless there is some compelling reason to do otherwise.

Peaceful and positive

Problems can be avoided to the extent that any action, assembly, or protest is peaceful and has a positive tone, a civil tone, marked by civility. Commonly that is the case, but all too frequently it is not the case.

Peaceful expression

Speech and peaceful assembly are constitutionally protected. Peaceful expression is protected, permitted, and encouraged in a modern, Western-style democracy.

But protection of peaceful expression and assembly does not extend to protection of all expression and assembly.

Passionate peaceful assembly that ends at worst with peaceful disruption

Even for ardent protesters who want their protest to be very dramatic, sticking to strictly peaceful assembly, at worst progressing to peaceful disruption is the best approach to pursue. Not to encourage disruption, but to limit it to peaceful.

Literally, any approach that advances beyond that stage is simply asking for trouble, playing with fire. Alas, that admonition won’t stop a lot of passionate protesters, activists, and especially not die-hard anarchists, but hopefully the details of the spectrum model for action, assembly, and protest presented in this paper will at least give them a little pause before they embark on a path that has escalating risk.

Precursors to violence

A clear goal is to avoid violence — at least for non-anarchists. This means paying careful attention to precursors that provide an early warning signal that what may have originally been intended as a peaceful assembly may be at risk of devolving into violence.

Generally speaking, the stages on the action, assembly, and protest spectrum between peaceful and violent are the precursors to violence.

Specific actions that can be precursors to violence include

Tough and rough language.
Angry and intimidating gestures.
Seeking confrontation.

Tough and rough language can include:

Intense or angry tone of voice.
Profanity.
Insulting language.
Intimidating language.
Bullying language.
Violence-themed words.
Threatening language.

Angry and intimidating gestures can include:

Facial gestures.
Hand gestures.
Body language overall.

Violence in language

Words connoting or implying violence are very common in our daily language. This is very unfortunate. We speak of beating, killing, strangling, choking, kicking, and on and on, usually without violent consequences, but the coarseness of our language likely makes it just a little easier to segue into violence when push comes to shove.

For a more comprehensive treatment see my paper Violence in Language.

All I can suggest is that people should endeavor to tone down the level of violent words used in everyday discourse. Sure, such coarse language isn’t breaking any laws, but it sure isn’t making it any easier for us to all get along with anything remotely resembling harmony.

Intimidation

Instilling fear in the targets of a protest may be a primary motivation of the protest, to attempt to coerce the other side into some desired action or to discourage them from taking some action that protesters oppose.

Again, there is no great clarity as to where the bright line is between constitutionally-protected speech, action, assembly, and protest that seeks to persuade or possibly intimidate others vs. what will be considered illegal by law enforcement, prosecutors, and the courts.

Speech, gestures, actions, and occupation

The focus of this paper is action, such as a protest or other form of assembly, but there are several distinct components of any so-called action:

Speech — the words, the tone.
Gestures — body language that conveys meaning or intentions.
Actions — movement, activity, disruption, interference.
Occupation — permitted assembly or march, sit-ins, trespassing, unpermitted assembly.

Threatening words and gestures

Words and gestures can certainly be peaceful and nonthreatening, but they can also be very threatening, or maybe only merely interpreted as threatening even if not intended to be threatening.

Organizers and law enforcement alike need to remain vigilant for any overtly threatening words and gestures or a progression of escalation that seems headed in the direction of threats, force, and even violence, but once again we have to note the lack of bright lines or great clarity and the necessary role of discretion.

Ultimately, law enforcement will have to make the call as to whether the overall effect of the action presents an imminent risk to public order.

Threatening and nonthreatening gestures

The human hand does not have to be threatening, but it can be.

An open palm or a peace symbol can be peaceful enough.

But a closed, clenched first tends to be anything but peaceful, a threatening gesture or even a precursor to violence.

Or, maybe protesters simply seek to act tough to gain attention and for emphasis rather than having any intention to follow through with actual toughness, force, or violence. It’s all so vague, unclear, uncertain, and ever so problematic.

Again, it falls to the discretion of law enforcement.

Again, protesters can play with fire, but are urged to do so with great care. One small mistake, miscalculation, misinterpretation, or unexpected provocation and the whole situation could quickly spiral out of control. More extreme activists may be okay with that prospect, but the organizers and non-extreme participants must be aware of the risks.

Sharp and angry words and gestures with a distinctly negative tone

Short of outright threatening words and gestures, words can be given a sharp tone and a tinge of anger that can begin to come across as anger and can begin to feel threatening.

Similarly with gestures. Mild gestures can come across as distinctly peaceful, but extreme or forceful gestures can come across as distinctly threatening.

Alert organizers and law enforcement can detect such nuances and act accordingly to rein in excessive passion, but all too often things just continue to escalate into distinctly threatening, distinctly forceful, and even distinctly violent interactions between participants, their targets, and law enforcement.

Interaction between speech and action

Superficially, it would seem that speech and assembly are fairly distinct activities, but in reality they interact in significant and potentially volatile ways, some positive and some negative.

Using action to amplify speech

Ultimately, it is speech that conveys the true message that protesters wish to convey.

But action and assembly can serve to greatly amplify that message.

A march or rally can convey a message much more effectively than a single letter to the editor, or even every participant sending a letter to their congressman.

But, negative action or a protest that devolves into excessive disruption or violence can negatively amplify the message, undermining its value.

Using speech to amplify action

Action or assembly alone, even with great signs, will not convey as strong a message as when the action is accompanied by speech. A great speech and great speakers can dramatically amplify the impact of the action, enhancing the effectiveness of the message embedded in the action.

Speech and assembly amplify each other. But that can work both ways.

Hateful, inciteful, or provocative speech can have the effect of turning an otherwise peaceful and productive assembly into such a mess that any useful message can be completely undermined or even flipped over to be interpreted in exactly the opposite of the way that the action organizers intended.

Spectrum of intentions

Separate from the specific agenda, content, or topic matter of the action, the participants have some sort of intention that they are trying to communicate or effectuate, which lies somewhere on a spectrum:

Conveying an informative message.
Engaging in a two-way dialog, conversation, exchange of views.
Persuading — with reason and dispassionate argument.
Cajoling — applying some degree of emotional appeal.
Commanding — rather strident, insistent, demanding.
Bullying — belittling and demeaning.
Intimidating — implied threat and denial of safety.
Threatening — sense of potential, eventual, or even imminent harm.
Damaging — clear-cut criminal action.
Harming — clear-cut criminal action.
Destroying — clear-cut criminal action.
Killing — clear-cut criminal action

Thresholds

The peacefulness of action, assembly, and protest can be judged by various thresholds:

Sincere desire for peaceful change.
Seeking to coerce and intimidate.
Seeking to change by force.
Seeking to punish for lack of change.

Peaceful protest is of course constitutionally protected.

Attempts to coerce and intimidate will get a mixed reception, depending on the mood and discretion of law enforcement. Sometimes they will be tolerated, and sometimes not.

Seeking to change by force is generally not tolerated, but more ardent activists, especially anarchists, will actually claim that their force is still peaceful, even if it is anything but.

Seeking to lash out at institutions and authority in a punitive and punishing manner for refusal to consent to demands for change will of course generally be met with stiff resistance by law enforcement.

Aggressiveness

Aggression can eventually rise to the level of physical damage and harm — violence, but outright physical aggression is commonly preceded by some degree of non-forceful, nonviolent aggressiveness:

Aggressive tone and language.
Aggressive gestures, including exaggerated and aggressive pointing and arm and hand gestures, such as flailing arms and even raised fists. A fist alone is an aggressive gesture.
Aggressive physical movement, including rapid movement, running, and getting in someone’s face.

Basically, anything that would make an average person feel distinctly uncomfortable or intimidated. Speech and gestures are intended for communication, not as a form of bullying, compulsion, or coercion.

Disruption

For purposes here, we define disruption as interference with the daily life of others, commerce, government, or public order, even if relatively peaceful.

As given in the spectrum of action, assembly, and protest, the spectrum or levels of disruption in the model proposed by this paper are:

Peaceful disruption — minor interference, not seen as threatening.
Modest disruption — seen as a bit unfriendly.
Moderate disruption — seen as significant interference, but not terribly threatening.
Excessive disruption — barring entrance or passage by others attempting to go about their daily lives.
Extreme disruption — trapping individuals in an area and preventing their escape, restraining movement.

There are two main categories of disruption:

Passive interference with daily life of others.
Active interference with daily life of others, commerce, or government operation.

Various forms of disruption and interference include:

Interfering with the rights of others.
Preventing others from going about their daily affairs, in public or private.
Interfering with business or commerce.
Interference with government and public administration.
Disruption of public order.
Interfering with movement — blocking sidewalks, streets, highways, entrances.
Encircling and trapping people.
Boycotts.
Tortious interference — intent to disrupt a business.
Work actions — strikes, sickouts, slowdowns.

Exactly which forms of disruption are legal will vary greatly and depend on both the specific details of the situation and the discretion of law enforcement.

Whether or when a boycott could rise to the level of tortious interference is somewhat vague, although opinions on the matter are not vague at all.

Disruption vs. interference

The distinction drawn here is that disruption is more of a mere speed bump, modest inconvenience, modest detour, or short, temporary delay that otherwise permits others to quickly continue with their daily lives, while interference is a more severe interruption which may completely prevent others from engaging in the normal activities of their daily lives in some area of interest to them.

A protest that briefly interrupts normal activities, makes its point, and then quickly disperses without major inconvenience would be a simple disruption.

A protest which is a mere distraction and presents no significant disruption of normal activities would not even qualify as a disruption.

An extended protest which completely shuts down or severely disrupts normal activities for an extended period of time would constitute interference.

Disruption vs. force

Does disruption qualify as force? As you might expect, the answer is that it all depends. And that not everyone would agree, one way or the other.

The model proposed in this paper is that a disruption would qualify as force or verge on qualifying as force if:

Any person is prevented from engaging in any desired activity.
Any person feels intimidated.
The disruption interferes with daily life of others in a way that cannot be easily avoided.
Any person feels threatened by the disruption, even if the majority of participants are relatively peaceful.
Any participants in the disruption engage in direct use of force or violence, even if the majority of participants are relatively peaceful.

Some examples would include:

Standing or marching closely enough together that others cannot pass.
Linking arms and refusing to allow others to pass.
Using an aggressive and loud tone of voice that feels intimidating or threatening to others.
Blocking individuals from passing.
Blocking employees, officials, or law enforcement.
Harassing individuals so as to make it more difficult for them to do their jobs or go about their daily lives.
Blocking substantially all of a sidewalk or otherwise making it difficult to pass.
Blocking entrances to buildings.
Blocking driveways or vehicle entrances.
Blocking roadways.
Blocking vehicles.
Walking, marching, running, dancing, or weaving in and out of traffic on roadways so as to make it difficult for vehicles to travel safely.
Blocking or even partially obstructing highways, ramps, or even shoulders or highways and roads.
Attempting to coerce others into action or inaction.
Attempting to compel others into action or inaction

To be clear, none of this is intended to interfere with constitutionally-protected rights to freedom of speech or assembly, or the implied right to protest, but simply, to assure that the rights of others are similarly protected from any disruption that rises to the level of force.

Some would argue that force does not constitute violence and that as long as an action is not outright violence, it should be tolerated and be considered constitutionally protected, and while it certainly is true that force is not violent per se, the threshold in normal life is not violence, but force that disrupts public order.

Disruption as an end goal

There is rarely any great clarity as to what role disruption is intended to play in the agenda for any action, assembly, or protest. It could be anything along a spectrum from:

Inadvertent and unintentional.
An unintentional side effect of the evolution of the action, something that just happened along the way, without any great plan.
A conscious intention of a subset of participants to engage in disruption even if the organizers or vast majority of participants had no such intention to be disruptive.
An intended steppingstone to a greater end goal, part of a plan.
The end goal of the action.

Intention of a disruption

The intention of a disruption could be anything along a spectrum from:

A way to attract attention — Look at us!
A way of amplifying a message.
An attempt to coerce or force a response.
An attempt to compel a desired change in policy.
To instigate a forceful or even violent confrontation with authorities.

See spectrum of intentions above for additional intentions that may apply to disruption as well as non-disruptive action, assembly, and protest.

Trespassing

Trespassing may or may not be disruptive — it depends on the situation and level and form of action involved.

The owner or manager of the property is free to either permit the entrance or stay, or to request or demand that the individuals or group leave, and can also request law enforcement to request or force the trespassers to leave the property.

Mere presence on private property is not a crime, but if both the owner or manager and law enforcement request individuals or groups to leave, any ongoing presence and any damage would be a criminal act.

Permissible limitations on speech and assembly

Some think that free speech and freedom of assembly are unlimited rights, but the courts have found that some limits to protect public order are permitted, provided that any limitations do not discriminate based on the content of the speech.

The three court-affirmed permissible limitations are:

Time
Place
Manner

So, you can’t protest in the middle of the night or in the middle of the street, or with amplification — depending on what kind of permit you have.

Permits

The courts have ruled that localities can require permits for assembly, at their discretion, provided that there is not discrimination based on content of speech or who the participants are.

Some activists, especially anarchists, refuse to recognize any limits or any need for permits.

Law enforcement and prosecutors may use their discretion when encountering any action, assembly, or protest which violates local regulation on permitting of such events. They may choose to simply order the group to disperse, but are free to use force and arrest if the event becomes a threat to public order.

Public order

The main point about disruption is that it constitutes a level of activity that disrupts public order, preventing individuals and public servants and officials from going about their daily lives and affairs.

Some modest level of disruption is generally tolerated, provided that it is no more than a mere nuisance, but anything constituting a significant or severe disruption will generally be treated as interference with public order, which is a crime.

Law enforcement would of course intervene with force and arrests when confronted with disorder and anything seen as a risk of significant disruption or violence.

Disorder and disorderly conduct

Just a brief note here that disorder is something that the law recognizes as something to be avoided, that maintaining public order is one of the primary functions of law enforcement.

In particular, disorderly conduct is a crime in all locales.

So, individuals engaged in action, assembly, and protest must endeavor to refrain from engaging in disorderly conduct or otherwise acting in a way that invites or causes disorder.

Freedom of speech and assembly are NOT licenses to engage in disorderly conduct. At least according to the law, even if aggressive activists, including anarchists or groups such as Black Bloc, maintain that their brand of disorder is an exercise of their “rights.”

Force vs. violence

Where exactly is the boundary between force and violence? That can be vague as well.

Force that results in damage to property or harm to individuals is clearly a matter of violence.

That said, damage or harm that is de minimis, such as not requiring expensive repair or medical treatment will tend to be treated much less severely than where damage is substantial or harm requires medical attention.

Then there is the grey area such as where force is intended as an attack or assault even if no significant or necessarily discernible damage or harm is inflicted, such as:

Spitting
Throwing liquids
Throwing relatively harmless objects
Throwing objects capable of only minor or modest harm
Throwing clearly harmful objects
Kicking
Pushing
Shoving
Pulling
Pulling away from law enforcement
De-arresting
Escaping from custody
Slapping
Poking
Punching
Graffiti

Generally it will be up to the discretion of law enforcement and prosecutors whether they want to expend the time, energy, and resources to pursue such violations, but a decision not to pursue them does not confer any kind of constitutional protection for performing similar actions in other or future situations.

Damage to property vs. harm to people

Some activists assert that damage to property is not violence and that only harm to people constitutes violence, but that is more of a narrow, extreme view, not the norm, and certainly not the view of law enforcement in general.

Spectrum of violence

There are levels of violence that can occur in a disorderly action, assembly, or protest:

Unruly — no harm or damage per se, but causing a feeling that harm or damage may be imminent.
Scuffling — minimal harm.
Damage to property — modest to moderate.
Harm to others — but relatively treatable.
Rioting — wholesale violence — damage and harm, looting.
Destruction of property — severe damage, arson.
Serious harm to others — requiring significant medical intervention.
Death.

None of these are legal. It is simply a question of the severity of the punishment.

Although some activists, notably anarchists, do not see damage to property as violence, nor relatively minor harm to others.

Intent to damage or harm without actual damage or harm

Not every action that is intended to do damage or harm actually does so. It falls to the discretion of law enforcement and prosecutors whether to arrest and charge such perpetrators. The actual damage or harm will influence any punishment, but intent alone is sufficient to indicate a criminal act.

Examples might include:

A rock, brick, bottle, or even a Molotov cocktail thrown but failing to hit a desirable target.
A punch thrown or a kick made that either does not connect or fails to cause any significant harm.
A missile thrown at a building that causes no significant damage.
A bat, pipe, stick, piece of lumber is swung, but either fails to connect or connects with too little force to do significant damage or harm.
A bomb or incendiary device is planted but fails to detonate or detonates without causing damage or harm.

Confrontation

Most sensible people would agree that confrontation is to be avoided, but some protesters, notably anarchists, are frequently hell-bent on confrontation as their main intention, even to the point of the violence that they hope will follow.

Elements of confrontation include:

Instigation
Incitement
Provocation

Boston Tea Party

How would the infamous Boston Tea Party of 1773 be treated in the proposed spectrum? It was:

An act of protest.
Use of force.
Violent — against property, but no harm to others.
Individuals disguised themselves to shield their identities.
A criminal act, in clear violation of well-known laws.
Destruction of private property.
Disruption of commerce.
Disruption of daily life.
Led to an outright revolution.
Was not an instance of “peaceful” protest.
Not violence against others — no persons were harmed.

Most people would accept that revolution involves destruction of property, harm, and loss of life, but most people would accept that revolution is far beyond simply protest.

Was this protest an act of “democracy”? Debatable. It certainly was a clear expression of the will of the people, but I would argue that the clear use of force, destruction of property, and shielding of identities render it an illegitimate action in the context of democracy — but a great and laudable action in the context of pursuit of revolution

No matter how you slice it, the Boston Tea Party was not a benign or “peaceful” protest.

Anger

Anger can be present in a number of forms, some not so visible and some extremely visible. Some of the forms, roughly as a spectrum:

Subliminal — too deep down to be consciously felt.
Deep down — felt but not expressed.
Just beneath the surface, simmering — risk of surfacing and getting out of control.
Visible — visible to others even if not felt or acknowledged by the individual.
Communicated — angry words, even intimidating, bullying, threatening.
Gestured — body language, hand gestures, facial expressions.
Acted out — more intense body language.
Outbursts — shouting, yelling, screaming, threatening.
Force and violence — throwing things, damaging property, harming others.

We now have the modern concept of anger management, encouraging people to proactively deal with their anger issues. In the old days, people just “blew off steam.” Today, we have a mix of the two rather distinct approaches. Unfortunately, anger can escalate a protest from being relatively peaceful to verging on violence or even outright violence.

How much anger is permissible before grave risk of verging on violence or at least chaotic disruption? There is no easy answer. In practice, it ends up being left to the discretion of law enforcement, and if they are not extremely vigilant, it is only the outbreak of actual violence that provides the answer, which is generally too late.

Simmering anger

Organizers and law enforcement alike need to be ever-alert for simmering anger, which can quickly spiral out of control, leading to chaos, outbursts of violence, or outright rioting.

Outbursts

Actions, assemblies, and protests frequently follow a scripted agenda, but occasionally emotion takes over, even if only by individuals or small subgroups, but causing individuals or subgroups to uncontrollably engage in:

Shouting
Yelling
Screaming
Threatening
Menacing

The first three are not illegal per se, unless they rise to the level of a disruption of public order and a request by law enforcement to break up the event.

Threatening may or may not be a crime. If relatively mild and not terribly indicative of imminent physical harm, it is simply offensive speech, offensive but not illegal per se.

But threatening is illegal if it is seen and felt as menacing and suggests the risk of imminent physical harm.

And there is a gray area between, where a threat is taken seriously although it may not be clear and obvious that physical harm is truly imminent. Then it falls to the discretion of law enforcement, prosecutors, courts, judges, and juries to make a final determination.

Passion

Passion can be a very good thing, or it can devolve into a very bad thing.

The distinction between passion and anger can be rather vague, arbitrary, and subjective.

Passion can be manifested as very positive energy, for good, but it can also be manifested as very negative anger, for not so good.

Passion as a whole cannot be placed on the spectrum between peace and violence. In essence, it can occur at any stage of the spectrum.

But as good and positive as passion can be for peaceful action, assembly, and protest, passion can add fuel to the fire once anger has taken root and participants move towards the upper half of the spectrum where loss of control can have harmful and even disastrous consequences.

Passion that borders on anger

Of course we should support and encourage people to be passionate, but we should also be clear about strongly discouraging passion that gets out of control and devolves into raw anger that is likely to fuel violence.

Outrage

Activists frequently speak in favor of outrage, the fuel for their efforts to spark dramatic attention, action, and change, but outrage is like fire. When managed well, it can be a tool for good, but if managed poorly or over-enthusiastically, it can quickly spiral out of control.

Somehow, we have to come to grips with how to balance passion, outrage, reason, and basic common sense. Or at least be well aware of the consequences of failing to find a reasonable balance.

Riot

The primary concern in all of this is action, assembly, or protest that might devolve into out and out rioting, not just scattered outbursts of violence, but widespread violence.

If there is one thing law enforcement and authorities in general do not want to have to deal with, it’s rioting. They will go to any length to avoid it. This is the essential reason for the advent of heavily militarized police forces.

The flip side is that authorities are so averse to resorting to a heavy-handed, militarized response that they are frequently too reluctant to harshly intervene at an earlier stage when intervention could have been more successful and less harsh, but would also have been seen as over-reacting since not everyone will be convinced that an all-out riot was really the likely alternative outcome.

In any case, the lesson is that the further participants stay away from the upper end of the spectrum of action, assembly, and protest, the less likely both violence and oppressive law enforcement will be.

Chaos

Chaos means a lack of order, disorder, volatile movement and activity, and intense confusion. Technically, it does not mean rioting or wholesale violence per se, although isolated incidents of violence may be possible or even likely, but the great risk is that even a modest spark could quickly push a volatile situation into outright rioting and the violence which ensues.

In some sense, a very real sense, you could say that chaos is a close cousin to rioting.

An orderly parade, march, or rally will tend to avoid chaos, but a lack of orderliness can quickly spiral out of control into chaos.

Chaos is especially notable because:

It is uncontrolled.
It is uncontrollable.
It is unpredictable.
It may contain isolated pockets of violence.

Law enforcement is adept at maintaining order with an orderly parade, march, or rally, but once chaos breaks out, law enforcement rarely has sufficient manpower to cope effectively with wholesale chaos. For this reason, law enforcement will go to extreme lengths and measures to refrain from allowing an orderly action to get out of control. To wit, the militarization of of law enforcement, notably heavily armored and armed riot control police.

Some activists, especially those who consider themselves anarchists, are perfectly happy to consider chaos as an acceptable form of protest, not only despite the prospect of chaos devolving into violence and rioting, but especially because of the potential for that devolution, since a violent confrontation with authority is their primary goal. Not all activists, for sure, but some. A notable example being the infamous Black Bloc of anarchists.

Mobs

Where’s the bright line between a peaceful assembly where participants are behaving aggressively and an angry mob? There really isn’t any.

I don’t think there is any question that the founding fathers were not intending to enable and protect mob-like gathering. That’s why they placed the word peaceably before assemble.

It’s a shame that too many activists and agitators refuse to acknowledge that requirement of our Constitution.

Gangs

A group of aggressive protesters may not seek to steal, sell drugs, or otherwise financially profit from their protest, but damage to property and roughing up their fellow citizens is just as much a crime as theft, drug dealing, and menacing, so organized groups of overly-aggressive protesters can be just as much a gang in the eyes of the law as more traditional street gangs.

Their purpose may be different — seeking social change, but their tactics may be quite similar to those of the more traditional street gangs, incurring the unwanted but warranted attention of law enforcement.

It’s a shame that too many activists and agitators lead fellow protesters down this path, away from truly peaceful assembly.

Is it legal for protesters to attempt to drown out law enforcement officers?

This is an interesting question. I am unaware of any full adjudication of the issue.

Technically, protesters have their right to freely express themselves, even quite loudly. Given a large enough group, their voices can indeed drown out the voices or even bullhorns of law enforcement, giving them the excuse that they were literally unable to hear otherwise lawful orders.

But does that really let them off the hook? Is it a permissible defense in court? Maybe sometimes, maybe not sometimes, and depending on the jurisdiction and the judge.

And if they are intentionally trying to drown out law enforcement orders, is that permissible or not as a defense of failure to obey?

There are too many variables; some legal and judicial clarification is needed.

Law enforcement has a technical solution, LRAD — Long Range Acoustic Device, an electronic speaker capable of loud and clear enough volume that no moderate street protest could drown it out no matter how hard they tried. Larger cities have them that they could use on occasion in limited venues, but generally they won’t be available for most noisy street protests and can’t be moved around conveniently in crowded and confined spaces.

Conclusion

Truly peaceful protest is a wonderful part of a vibrant democracy, but all too often so-called peaceful protest that is anything but TRULY peaceful. Being protest or assembly does not automatically confer the quality of peacefulness. We need to do a lot more diligent job of accurately characterizing speech, action, assembly, and protest as to how peaceful, how aggressive, how forceful, how damaging, how destructive, how harmful it really is in each specific instance.

We need to do a much better job of encouraging TRULY peaceful action, assembly, and protest.

And if protesters are insistent on being disruptive, they need to more accurately characterize what level of disruption they intend, giving law enforcement and protesters alike a clear view of where the action will likely end up in terms of perfectly legal and constitutionally protected activities vs. a clear violation of court-tested legitimate limitations on speech and assembly.

The model presented here should help to clarify matters.

Even for ardent protesters who want their protest to be very dramatic, sticking to strictly peaceful assembly, at worst progressing to peaceful disruption is the best approach to pursue.

Literally, any approach that advances beyond that stage is simply asking for trouble, playing with fire — figuratively and literally. Alas, that admonition won’t stop a lot of passionate protesters, but hopefully the details of the spectrum model for action, assembly, and protest presented in this paper will at least give them a little pause before they embark on a path that has escalating risk and give them greater knowledge of what exactly they might be getting themselves into.