Here & Now

Howard Schweber on First Amendment rights and Encampments

Zac Schultz:
The First Amendment to the Constitution protects our freedom of speech and the freedom to assembly, including to protest. But what are the limits to those rights? For that, we welcome UW-Madison
political science professor emeritus Howard Schweber. Thanks for your time today.

Howard Schweber:
Well, thank you for having me.

Zac Schultz:
So when protesters initially took over the intersection where a man was shot and killed by police, they were exercising their right to assemble. Were they still within their legal constitutional rights to be in that public space?

Howard Schweber:
No or to put it differently, not necessarily. So let’s back up a step. The way these kind of rules, the way rights in general we talk about them is not in terms of you have the right to do X, but in terms, can the government stop you from doing X? It’s always a negative constraint on what the government may do. With the implication that anything that’s not prohibited, you must be left free to undertake. So the rules are the government is perfectly free to make what are called content neutral time, place and manner regulations. And these are things like don’t use loudspeakers at night. Don’t camp overnight in a park. Those are actual old cases. So there’s no question that cities and states have the authority to make those rules, so long as they’re content neutral. There are two complicating factors. One is when a city or state makes these rules, they have to be as little restrictive of expression as is possible. The other complicating factor is whatever rules are adopted, there has to be adequate alternative avenues for expression. So those are the broad general principles. And having said all that, setting up an encampment that blocks traffic and close businesses, yeah, that’s very clearly something that is not protected by the First Amendment and something the government is perfectly free to put an end to.

Zac Schultz:
So what happens then when a city doesn’t enforce those rules?

Howard Schweber:
Right. So and of course, you know, I think we all recognize that the broader context of this goes back to Black Lives Matter and the pro-Palestinian encampments that got so much attention during the 2024 presidential election, in the first months of President Trump’s term. We’ve seen a growth, a considerable growth in the last few years, of protests and protests in the form of encampment. It’s just become a style of protesting that’s become popular. And one of the problems that raises is precisely the problem you just mentioned, which is and you’re exactly right to ask that question what happens if the application of the rules I’m talking about the state is inconsistent? What if some encampments are allowed and others, you know, are taken down? And that was precisely the claim that was made in the case of the pro-Palestinian encampments and pro-Israel legislators and citizens who objected to the way they were being treated. The claim was it was inconsistent. These encampments were being allowed. These students were being allowed, being permitted to be disruptive in a way that other student protesters had not been. So a city or state can run into trouble by showing favoritism as well as disfavor. The flip side is whether we’re talking about a city or a university, or a state government, or any police force, discretion is always part of the job description. Using your judgment, deciding when to step in, deciding how much leeway to allow. And that always opens the possibility of someone claiming you’re being inconsistent.

Zac Schultz:
So we’ve talked about the word encampment coming around in protest movements more. And, you know, we can go back 15 years to the Act 10 protests where the Capitol was occupied for more than a month. There were protest zones within there where the protesters themselves prevented media from accessing certain halls, legislators from getting to their offices. That was negotiated in terms of how people would exit the Capitol, the preservation of materials. There were very few arrests down to the last handful of people brought out. Obviously, the Palestinian protest encampment on UW-Madison required police intervention. This one did.

Howard Schweber:
We should be clear on this. The Palestinian protest on campus in UW-Madison was tolerated for a considerable period of time. The university and, you know, this is the bind that they’re in. They tried to do this with a gentle hand. They tried to exercise discretion to maximize the ability of students to express themselves. They tried to find a balance between allowing this expressive activity to go forward while preventing disruption. But that becomes the problem. So take Act 10, for example, many conservatives who opposed the protests, who supported Governor Walker were deeply upset. Why are the police not throwing these people out? Why are they letting these people occupy our Capitol building and prevent the business of the government from going forward? Would they do the same if this were the Ku Klux Klan? And again, they’re not wrong. The answer, I hope, is no. So this just gets back to the point I was making earlier. There is a history of encampments and takeovers in recent years. Governments have been wrestling with them, and the politics around those government responses has been so amplified and made so partisan and fraught because of the way Trump treated those issues when he ran for president in 2024, that now, you know, all the cities, universities, states are on tenterhooks trying to figure out what’s the right way to proceed. And the error on the side of caution is intervening and moving the encampments out rather than being unduly tolerant.

Zac Schultz:
So kind of put a bow on this in terms of the First Amendment and protesters because a lot of people say, “Well, it’s my First Amendment rights.” What is the great confusion there that comes within the bounds of your rights versus someone else’s rights?

Howard Schweber:
So the very short version is you have a right to protest up to the point where you’re disrupting other people’s ability to go about their day. This is a simplistic version, of course, but it’s not far off if you block streets, if you block sidewalks, if you block access to businesses, if you block people’s ability to get in and out of their home, if you disrupt the operation of classrooms, for example. None of those is protected by the First Amendment. The First Amendment protects the right to express yourself in ways that are peaceful and discursive. There simply is no protection for engaging in, well, civil disobedience. And the reason we call it civil disobedience is that when you do that, when you deliberately march into a racially-segregated lunch counter and integrate it, right, you acknowledge you risk being arrested and suffering the punishment. That’s part of the whole civil disobedience paradigm. And it’s an honorable — it can be a very honorable thing but there is not a First Amendment right to engage in acts that would otherwise be crimes.

Zac Schultz:
All right, Professor Schweber, thanks for your time today.

Howard Schweber:
Thank you so much.