The situation in America may not appear as grim as it did during the Great Depression. But with tens of millions unemployed and thousands of small business closed forever, we aren’t really that far off.
From Alexandria, Virginia to Portland, Oregon summer 2020 has seen protests grip cities and towns across the United States. From Coronavirus restrictions to the Black Lives Matter movement, citizens upset with (or in favor of) government action for one reason or another have exercised their First Amendment right to assemble and protest.
For months now protesters and counter-demonstrators have made their presence known in downtown Portland, just as they did 86 years ago during the West Coast Waterfront Strike in the summer of 1934. Though the reasons behind the two summers of protests might seem different at first blush, the similarities between the demonstrators’ demands and the governments’ responses are striking to say the least.
A Brief History of the Waterfront Strike
In the spring of 1934, tens of thousands of longshoremen, sailors and other workers went on strike. With no workers available to load and unload cargo at every major west coast port, the government got restless. Eventually violence erupted and striking workers were pitted against the police. Police fired tear gas and even live ammunition into crowds, either in self-defense or as an act of war upon the citizenry, depending on who you ask.
Governor Julius Meier, a political independent, pleaded with President Franklin D. Roosevelt, a Democrat, to send federal troops to Portland. The governor described the situation as one of “armed hostilities.” But FDR declined. A U.S. Army official warned that “Portland is the worst spot in which to release troops at this time because if there is a revolution in the making, such action would precipitate it.”
Arising out of the Portland strikes was the case of Dirk De Jonge, who was charged under Oregon’s criminal syndicalism law, which prohibited “any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.” De Jonge was arrested at a Communist Party meeting while speaking about poor jail conditions for those arrested at the protests. He was convicted and sentenced to 7 years in prison.
His appeal made it all the way to the U.S. Supreme Court. In this landmark case, the Court held that while
[First Amendment] rights “may be abused by using speech or assembly in order to incite to violence and crime . . . peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals.”De Jonge v. Oregon, 299 U.S. 353 (1937).
Portland Protests in 2020
The political roles are reversed, but the problems are the same in 2020. Instead of begging the president to send federal troops to quell unrest, the Portland mayor and Oregon governor, both Democrats, are refusing any federal assistance from the Republican administration. The question is, why?
Surely there is no one answer. But looking back on 1934, FDR refused to send federal troops despite months of violence and disorder. A year earlier, as part of his New Deal, FDR signed into law the National Industrial Recovery Act which, among other things, recognized labor unions and gave them a right to strike.
Prior to this act, the courts had upheld the right of employers to go to great lengths to prevent the formation of unions. Companies could fire workers for joining unions, force them to sign a pledge not to join a union as a condition of employment, require them to belong to company unions, and spy on them to stop unionism before it got started.Source: https://www.britannica.com/topic/National-Industrial-Recovery-Act.
Had FDR sent troops to Portland, perhaps the violence could have been quelled sooner. But then he would have been using the vast power of the federal government to disarm the very people he sought to empower in the first place. Instead, he let it play out and the strike ended with the unionization of thousands of workers, beginning the rise of the powerful labor unions we know today.
President Trump took a different tack. While city and state officials claim the administration is violating protesters’ rights and interfering with local efforts to quell the demonstrations, the feds say they are defending their officers and institutions in a city unable or unwilling to do so.
In 1934, when the strike began to overflow into other parts of Portland and affect other local business (just as it has in 2020), business leaders united to form the Citizens Emergency League, a group dedicated to end the strikes by any means, including vigilante violence. This only added to the bloodshed but was justified as “law and order” prevailing over revolutionary upheaval. Perhaps the administration sought to avoid this same reaction in 2020. Or perhaps it simply does not want the protesters to win.
Anti-Protest Laws in Virginia
After De Jonge the First Amendment prevents a state from passing laws that reduce or constrain the right of citizens to peacefully assemble. The key word is peacefully. Acts of violence (looting, fighting, etc.) waive any First Amendment claim. But peaceful protest and speech cannot be prosecuted.
While the government cannot restrict the content of any speech or judge the reason behind the peaceful assembly, it can limit the time, place and manner of assembly. For example, a government can require a permit but cannot deny a permit based upon its disapproval of the message. It can also make laws to guard against peaceful assembly becoming potentially violent.
Virginia law allows police to declare an unlawful assembly when 3 or more people intend to advance their cause through force or violence likely to seriously jeopardize public safety, peace or order causing well-grounded fear of serious and immediate breaches of public safety, peace or order. Va. Code § 18.2-406.
This broadly-worded law gives police discretion to arrest those part of an “unlawful assembly” and charge them with a misdemeanor (or a felony if weapons are present). However, the language of the law is suspect and most charges are thrown out before they even get to trial. After all, absent actual violence, a police officer is hard pressed to determine a protester’s actual intent. More often, the government uses other less obvious ordinances to suppress peaceful protests.
An unlawful assembly was declared in Fredericksburg in May during protests surrounding the death of George Floyd and other social issues. Shortly thereafter, the City of Fredericksburg imposed a curfew and enforced it under the city ordinance punishing violations of emergency orders. A peaceful protestor was arrested after the curfew went into effect and was charged with a misdemeanor. Citing the First Amendment, a general district court judge declared enforcement of the curfew unconstitutional. Because there was no violence, the emergency ordinance could not support the curfew. The curfew was simply a mask covering the government’s true goal of ending the protests. The Commonwealth’s Attorney has appealed that decision.
Yet another example of a government not wanting the protesters to win.