Militarizing Protests and Free Expression
Deploying National Guard and other military troops to respond to protest-related civil unrest will undermine First Amendment rights.
A district court has just ruled that President Trump’s federalization and deployment of California National Guard troops violated a federal law known as the Posse Comitatus Act of 1878 (PCA). While much of the court’s decision relates to the constitutional structure of the federal government and the “separation of powers,” it also has important implications for the right to engage in public protests.
The PCA was a response to concerns dating back to the colonial era and Founding about domestic use of the military during peacetime. With limited exceptions, the PCA prohibits military personnel from engaging in domestic law enforcement functions. According to the district court, the question is “whether the military has executed domestic law or actively assisted with the execution of domestic law, which would violate the Act, or whether the military’s involvement is so indirect as to not violate the Act.” The court concluded that military personnel engaged in various law enforcement functions in violation of the PCA, including using crowd control measures, erecting traffic blockades, and establishing perimeters to aid law enforcement operations. The court also pointed to “Defendants’ complete sidelining of state and local authorities” during various law enforcement operations.
The court held that Defendants were:
enjoined from deploying, ordering, instructing, training, or using the National Guard currently deployed in California, and any military troops heretofore deployed in California, to execute the laws, including but not limited to engaging in arrests, apprehensions, searches, seizures, security patrols, traffic control, crowd control, riot control, evidence collection, interrogation, or acting as informants, unless and until Defendants satisfy the requirements of a valid constitutional or statutory exception, as defined herein, to the Posse Comitatus Act.
As the relief suggests, this case only applies to the use of military personnel in California. President Trump has also ordered that military forces be deployed to D.C. and has threatened several other “blue” cities with similar deployments.
It is important to remember that all this started with public protests concerning aggressive immigration raids by the Department of Homeland Security and ICE. As the district court noted, “There were indeed protests in Los Angeles, and some individuals engaged in violence. Yet there was no rebellion, nor was civilian law enforcement unable to respond to the protests and enforce the law.” Indeed, in an earlier decision providing temporary injunctive relief, the district court observed that owing to the First Amendment’s protection for lawful protest activities, the President could not declare the mere existence of public protests a “rebellion” that triggered deployment of the federal military.
The Trump Administration would like nothing more than to be able to police public protests with federalized or active duty military personnel. During his first term, President Trump expressly communicated that desire and, in addition, suggested to his Defense Secretary that protesters in D.C. should be shot in the leg by military personnel. The deployment to Los Angeles suggests nothing has changed since Trump 1.0 in terms of President Trump’s attitude toward protests or his desire to quash them. Indeed, as the Los Angeles deployment shows, the administration intends to use military personnel to respond to domestic unrest associated with public protests.
That maneuver, if validated by courts, would imperil more than the separation of powers. It would place in jeopardy the lawful exercise of First Amendment rights at demonstrations and other public events. Such events frequently involve varying degrees of unrest, from the peaceful gathering of crowds to blocking streets, vandalism, and riots. President Trump would likely use this evidence of unrest, even if it were minimal, as a pretext for deploying the federal military.
Domestic law enforcement officials frequently violate protesters’ civil rights, including their Fourth Amendment right not to be subjected to unreasonable searches and seizures and their First Amendment rights to speak and assemble. In addition, aggressive protest policing methods, including the use of weapons and physical assaults by officers, has caused significant physical and psychological harm - again, including to those who are lawfully exercising First Amendment rights in public places.
As I explained in a recently published article, deployment of federal military personnel to quell protest-related unrest would likely exacerbate these harms in multiple ways:
Since military personnel are generally prohibited from engaging in domestic law enforcement under federal law, they receive little training in that regard. Even domestic law enforcement agencies that purport to provide such training often engage in widespread violations of citizens’ rights. There is little reason to expect more from untrained military personnel.
Today’s law enforcement officials often respond to public protests with militarized equipment, tactics, and other indicia of military power. This show of force can chill even lawful protest activity. Adding federal military personnel and equipment to the mix will substantially increase the risk that individuals and groups will be unwilling to speak out in public.
The presence of armed troops further escalates already tense protest environments. If the object or mission is to bring the temperature down during episodes of unrest, deploying military personnel will likely have the opposite effect. In fact, at least for the intrepid few, the deployment may itself be further cause for protest. (This was a lesson officials should have learned from President Trump’s deployment of federal agency personnel to Portland and other cities during the Black Lives Matter demonstrations).
Displacing local law enforcement, as occurred in Los Angeles, leads to command and mission confusion, which in turn creates more opportunities for unlawful acts by military personnel, which in turn may lead to an increase in civil rights violations.
We know firearms possession by civilians increases the likelihood of such injuries. The risk that lawful protesters, or even those engaged in minor infractions, will be wounded, perhaps fatally, will likely increase as the number of armed personnel at a demonstration increases. Military personnel are trained to use their weapons, but that training relates primarily to neutralizing threats by lethal force.
A militarized public forum is not one in which even lawful exercises of First Amendment rights can safely and effectively occur. Further, the presence of federal military personnel brands public protest a threat to national security and domestic tranquility, an attitude directly at odds with the First Amendment’s presumption that protesters have a right to assemble and speak out on matters of public concern.
The district court’s decision invalidating the Trump Administration’s Los Angeles deployment is important in terms of preserving a protest environment that allows for robust exercise of First Amendment rights. It bans federal military personnel from engaging in certain law enforcement activities. The concern is that even this narrow victory may not survive review in the Ninth Circuit, or perhaps the Supreme Court.
As they consider the statutory and constitutional issues, appellate courts ought to factor First Amendment rights into the equation. History is indeed repeating itself. Only this time the danger to First Amendment rights may be even more acute. As the first Trump Administration’s response to the Black Lives Matter protests showed, the entire notion of “emergency” executive powers raises serious concerns when it comes to preserving First Amendment rights. Administration officials referred to the streets as a “battlespace” that had to be “dominated” by force, and took steps in that direction. As I stated in my 2023 book, Managed Dissent: The Law of Public Protest:
In the hands of President Trump, federal emergency powers became a very dangerous set of tools that threatened to place the country on a war footing at home. Trump referred to protesters as ‘terrorists’ and expressed a desire for ‘an occupying force’ he could dispatch to American cities. He surrounded himself with military generals, including General Mark Milley, Chairman of the Joint Chiefs of Staff, who Trump informed the nation’s governors would be in charge of the federal government’s response to the protests. . . .
What ultimately saved protesters and other Americans from a federal occupying force was a combination of resistance by state officials, public retreats by General Milley and Secretary [of Defense] Esper, published objections by former national security officials, and judicial decisions rejecting the excesses of militarized federal policing of domestic protests. But the federal response to civil unrest exposed the lack of clarity in federal laws relating to civil unrest, the danger of invoking those authorities for domestic political ends, and the need for independent and prompt judicial review of the acts of a vast federal law enforcement bureaucracy.
We are about to see what, if anything, government officials, the military, and the courts learned from the exercise of “emergency” executive power in response to public protests.