Does the right to drive trump the 1st Amendment right to assemble?

Barricades in france
Public Domain Barricades in France

For years we have been running posts under the title "taking back the streets," looking at how the car and its drivers have co-opted public space for private transportation, to the almost total exclusion of any other use. But the recent use of road blockades by the Black Lives Matter activists raises serious questions about the meaning of public space, and who has rights in it.

There is a long tradition of blocking roads as a means of protest; the word barricade, from the french barrique or barrel, is derived from the French tactic of blocking roads with barrels and disrupting the flow of traffic. The climactic scene in Les Miserables took place on the barricades in 1832, and it is said that one of the reasons that Napoleon III had Baron Haussmann redesign Paris with such wide streets was to deal with this:

Napoleon III realized that the narrow streets of Paris were easy to barricade and the winding disorganized layout made it difficult for troops to quell rebellions quickly. Therefore it was hoped that by with the new layout providing quick access for troops and broad streets discouraging barricades, future revolutions could be avoided.

In the USA, roads are being blocked as part of the Black Lives Matter protests. This has been going on in America since the revolution; in reaction to British banning of gatherings after the Boston Tea Party, it was put in the first amendment of the constitution that “Congress shall make no law … abridging … the right of the people peaceably to assemble …” However as Angie Schmitt notes in Streetsblog, The right to peaceful assembly is challenged by the “right” of convenient motoring.

Deray chargesCharges for obstructing a highway of commerce/Public Domain

That's how the laws are written in some states, anyway. In Baton Rouge, activist DeRay Mckesson was arrested for “Obstruction of a highway of commerce,” which is “is the intentional or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, road, highway, thoroughfare, or runway of an airport, which will render movement thereon more difficult.” So basically doing anything anywhere in Louisiana that slows down transportation, including peaceful assembly in public space, is illegal.

Schmitt quotes South Carolina Governor Nikki Haley as saying she supports public protests, with a caveat: “I’d ask that we not put our fellow citizens or law enforcement at risk — which is exactly what attempting to block highways does.” Citizens are evidently put at risk because ambulances and fire trucks are slowed down.

Last year, a Massachusetts lawmaker suggested that protesters who block highways should be charged with attempted murder on these grounds. But the world keeps turning when highways come to a standstill for more common reasons, like traffic collisions.

The eagerness to arrest and aggressively disperse people protesting on highways seems inseparable from public officials’ identification with motorist entitlement — the presumption that drivers’ business must never be subordinated, and certainly not for a spontaneous public demonstration exercising First Amendment rights.

Protesting is fine and the right of assembly is protected under the constitution – as long as it isn’t in the public space that has been given to cars.

Does the right to drive trump the 1st Amendment right to assemble?
Roads are public space where apparently only metal boxes have constitutional rights.

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