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How far does your constitutional right to protest go in Washington and beyond?

Seattle protesters in June. (Getty Images)

How far does your constitutional right to protest go and does it apply when the protests continue night after night? Former state Attorney General Rob McKenna joined Seattle’s Morning News to discuss the balance between the right to protest and maintaining order.

What is the balance that the courts are trying to strike here?

“The court is trying to strike a balance between the right of people to exercise their First Amendment constitutional guarantee to peaceably assemble, to engage in free speech that’s core to our constitutional rights … On the other hand, government exists in part to maintain public order and protect people and property from harm and the police were charged with that responsibility,” he said.

“So it’s easy when a crowd shows up, as happens most of the time and demonstrates peacefully … It’s much more complicated when a crowd shows up to peacefully assemble, demonstrate and then some people also join that crowd with very different intentions and start setting fires in Starbucks and throwing rocks and bottles at police and so forth.”

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This creates a difficult position in which police have to stop the violence, while considering the safety of those who are protesting peacefully.

“The police have to figure out how to stop that violence as best they can without harming the people who are there to peacefully protest. What they do when a protest turns violent is use crowd control measures. They’ll use chemical irritants like pepper spray and gas to break people up. Those are definitely irritating and could be harmful to people who have breathing conditions,” he said.

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This is the subject of a recent lawsuit filed by protesters, who feel they have to have gas masks to protest peaceably. What does the Constitution envision in the event that the cops decide that an event has gotten out of hand? If people do not obey the order to disperse, does your right to protest at that point evaporate?

“It doesn’t. It exists, but it can be overcome by the right of the city to exercise its police power, as we call it, to break up a protest which has turned into a riot or is about to turn into a riot. And if the police overstep and use these irritants and projectiles when they didn’t have a cause to do so, there could be consequences for that — they could be sued,” he said.

“There’ll be complaints filed against them, there are courses of action that could be taken if the police misused their power,” he added.

There’s also the issue of determining when something becomes a riot, and delineating between isolated incidents of damage and preventing more widespread damage.

“I think they have to have good evidence that it really is getting out of control, that it really does rise to the level of a riot, and that’s going to require more than one window being broken, for example, or one bottle being thrown,” he said.

“Unfortunately, of course, that puts some property at risk and it puts police officers at risk. I mean, police officers were injured too, and we know people get hurt on both sides. So it’s really tough.”

Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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