Carroll on Policing Protest: Speech, Space, Crime, and the Jury @JennyECarroll1 @YaleLJournal @UALawSchool

Jenny E. Carroll, University of Alabama School of Law, is publishing Policing Protest: Speech, Space, Crime, and the Jury in volume 133 of the Yale Law Journal. Here is the abstract.

Speech is more than just an individual right – it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. Dissent and disobedience in the form of such protests is not without consequences, however. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights – either directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, or manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others. To address these concerns, this Feature makes three critical normative claims. First, scholars and courts alike have failed to properly prioritize access to spaces. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence at times is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant’s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech.

Download the article from SSRN at the link.