Will Portland Adopt a Law to Restrict Protests? 

Vaidya Gullapalli

Tomorrow the Portland City Council votes on an ordinance proposed by the mayor that would impose time, place, and manner restrictions on protests in the Oregon city. The mayor and police department have pointed to recent clashes between protesters and anti-fascist, or antifa, counterprotesters to insist that the restrictions are necessary to prevent violence. Opponents of the proposal have pointed to the police use of violence against left-wing protesters and have criticized the mayor and police department for equating the actions of the right-wing extremist groups like Patriot Prayer with those of counterprotesters. Critics have argued that the restrictions would constitute an unconstitutional infringement on the First Amendment rights of protesters.

The ordinance, if adopted, would expand the city’s ability to place “content-neutral time, place, and manner” restrictions on protests. It would allow Mayor Ted Wheeler, in his current capacity as police commissioner, to control the location, size, and duration of a protest if there are two or more groups involved that have a “history of violence” or if there is a “likelihood of violence” based on protesters’ past conduct. The commissioner could also order limitations on a protest based on a belief that the protest will endanger bystanders. The proposal came directly in response to violence during an Oct. 15 “flash mob for law and order” called for by Joey Gibson, founder of Patriot Prayer.

Critics of the proposed ordinance have cast doubts on its legality. Immediately after Wheeler’s proposal, the ACLU of Oregon released a statement arguing that “[t]he mayor’s proposal grants broad authority to the mayor’s office to regulate constitutionally-protected speech and assembly with no meaningful oversight for abuse.” Jim Oleske, a constitutional law professor, told the Portland Mercury that the city would struggle to demonstrate that decisions made in accordance with the proposed ordinance were content-neutral, as constitutionally mandated, if a protest was regulated based on an expectation about how listeners would react to the regulated speech. The ordinance also grants broad discretion to the commissioner in determining which protest activity to regulate and how.

The debate around the ordinance has been closely tied to concerns about the Portland police department’s treatment of left-wing protesters. In August, antifascists showed up at a march organized by the far-right, white nationalist group the Proud Boys. When the counterprotesters did not comply with police orders to move, police fired flash-bang grenades and pepper balls at them, causing multiple injuries. The scene harked back to large dueling protests last June when the police’s treatment of left-wing protesters led to a lawsuit and, ultimately, to recommendations for reform from the city’s independent police oversight office regarding the treatment of protesters.

At a hearing Thursday, one of the City Council commissioners questioned the police department about use of force against protesters and differing treatment of right-wing and anti-fascist protesters. Commissioner Chloe Eudaly, who has said she will vote against the ordinance, asked the police department representative a series of questions about police violence against anti-fascist protesters at recent protests. Eudaly asked the assistant chief of police why the department treated protesters who did not obey dispersal orders, but were not engaged in violence, “as ‘fair game’ for riot cops to shoot with exploding munitions and pepper spray,” according to Willamette Week. The assistant chief’s response was that by ignoring a dispersal order, people were breaking the law.

In her testimony Thursday, the ACLU of Oregon’s legislative director pointed to “many instances of the safety of our community being endangered by police response to protest,” insisting that “If we’re serious about addressing the safety of communities, we need to talk about the use of crowd control weapons, what sort of de-escalation techniques we’re using, and what kind of training law enforcement have to actually respond to protests in a peaceful manner.”

Jo Ann Hardesty, a longtime civil rights activist who last week became the first Black woman elected to the City Council, also testified Thursday. Hardesty, who will take office in January, argued that the ordinance was premature and that the city should wait for the results of an inquiry into why police officers deployed flash-bang explosives into a crowd of anti-fascist protesters on Aug. 4. She said the police department had not told the truth about why they used force. And she pointed to the history of disparate enforcement of laws to warn that the law would be used to punish protestors of color, saying, “We don’t all experience the police the same way. We cannot have a police force for white people, and then a police force for everybody else.”

published on Nov. 13, 2018 in the Daily Appeal