Flowers: Is it a protest, or is it a riot?

Published 1:55 pm Friday, April 30, 2021

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When the Nazis wanted to march through Skokie, Ill., many of the residents were horrified. A large percentage were Jewish, and some had been interned in concentration camps. The memory of those camps was still vivid, since this was 1978, a mere three decades after World War II had ended.

I was in high school when the controversy erupted. At the time, the ACLU defended the Nazi group, which never ended up marching. But the fact that the storied civil rights organization swooped in to uphold the rights of evil men seemed to me, at the time, incredibly honorable. No one would ever call me a card-carrying member of the ACLU, but the fact that it was able to see beyond the vile character of its client to the larger principle of free speech, assembly and expression taught this high school senior a valuable lesson in civics.

The right to protest, passionately, forcefully but peacefully, is a foundational bedrock of our democracy. The ACLU understood that four decades ago, in Skokie. And it’s likely they’ll come back to defend that principle in Florida. But there’s a big difference, wrought from years of dangerous, anarchic explosions in the streets of our cities and towns.

Gov. Ron DeSantis recently signed into law a set of prohibitions on “riots.” The law is designed to prevent the type of demonstrations seen over the past few years in cities like Minneapolis, Seattle, Portland, Baltimore, Ferguson and Philadelphia.

According to the “Combating Public Disorder Act,” people who engage in protests that become violent will be subject to increased criminal penalties. The bill also creates specific, new laws that prohibit mob intimidation and cyber intimidation.

It is designed to protect private citizens and law enforcement officers against violent riots. After having seen much of the country burning over the past few years in the wake of police shootings, many Americans have good reason to support DeSantis even though, as was pointed out, Florida has had very few recent instances of mob violence.

But my old heroes of the ACLU have a problem with the law, using the classic “overbroad” argument. Kara Gross, legislative director of the Florida branch, stated that “The problem with this bill is that the language is so overbroad and vague … that it captures anybody who is peacefully protesting at a protest that turns violent through no fault of their own…those individuals who do not engage in any violent conduct under this bill can be arrested and charged with a third-degree felony and face up to five years in prison and loss of voting rights. The whole point of this is to instill fear in Floridians.”

The 18-year-old high school senior is now a 59-year-old attorney with three years of law school under her belt and three and a half decades of dealing with legal “word splitting.” For that reason, I’m not moved by Gross’ concerns with the law that, at its essence, puts protesters on notice that assaulting police officers, burning buildings, looting stores and attacking innocent bystanders is not constitutionally protected conduct.

If you are a peaceful protester, you will not find yourself involved with rioters. If you do see violence breaking out at the “Kumbaya” march you’ve organized, you either get out of there as quickly as possible, try and quell the violence, or call the police.

Better yet, you make sure that the violent elements will be neutralized before they even have a chance to infiltrate your “peaceful protest.”

I’m also not persuaded that these individuals referenced by Gross as “peacefully protesting at a protest that turns violent through no fault of their own” are entirely innocent. I said that same thing when I saw the “peaceful protesters” at the Capitol on Jan. 6. While the vast majority may indeed have gone to D.C. to air their grievances, the ones who got caught up in the violent assault on our Capitol can’t hide behind the “I am innocent” mantra unless they can prove that they were, in fact, innocent.

What’s good for the goose is good for the gander, or rather, what’s good for the elephant is good for the donkey.

My point is that riots are easily distinguishable from protests, and there is a clear, bright line we can follow. The Florida law draws it, and the protests from my youthful heroes at the ACLU ring hollow.

In these moments when people like Maxine Waters are literally urging people to go into the streets and “confront” their opponents, and when we have those who condemned Donald Trump for dangerous rhetoric excusing her words, and when we have the media ginning up anger at the possibility of verdicts they don’t like, it is inevitable that peaceful protests will be nothing more than a pipe dream.

Accompanied by pipe bombs.

Christine Flowers is an attorney and a columnist for the Philadelphia Daily News, and can be reached at