In August 2014, the city of Ferguson, Missouri, just outside St. Louis, erupted into nights of demonstrations and violence after a police officer fatally shot Michael Brown, an 18-year-old black male whom some witnesses said had his hands raised at the time of the shooting.

Black Lives Matter protests are controversial and have developed into riots

The eventual exoneration of the officer led to further demonstrations and violence, stirred in part by Michael Brown’s stepfather, who provocatively called on demonstrators to “Burn this bitch down.” The Black Lives Matter movement spread to other cities (most notably Baltimore) as reports came in of police misconduct with respect to blacks.

In time, protests that sometimes developed into rioting, led to a counter Blue Lives Matter movement. It stressed the dangers to which police officers are subjected in patrolling the streets, and further highlighted tension between some police departments and local populations.

A number of judges have barred attorneys from wearing Black Lives Matter pins in courtrooms.

Militarization of police imposes a chilling effect on First Amendment rights

The Posse Comitatus Act of 1868 prohibited the use of federal troops to enforce domestic laws. Under the 1991 National Defense Authorization Act, however, the military has shared equipment and tactics with local law enforcement agencies, especially those dealing with the war on drugs.

Some observers believe that the presence of police officers dressed in combat gear and wielding military weapons furthered tensions in Ferguson and elsewhere by distancing the police from members of the communities they were serving.

Ashley M. Eick, writing as a J.D. candidate at the William and Mary Law School, has argued that such a militarized police response poses a chilling effect on the right of peaceable assembly, which American Founders guaranteed in the First Amendment (2016). Recognizing the importance of public safety, Eick argued that the state should have to prove the existence of a “clear and present danger” of violence before employing militarized forces (2016, p. 1255).

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2017.

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