Considerations and risks – Law Journal for Social Justice

By Sara Lander

Lawyers spend countless hours of their lives engaging with the law. This can take many different forms, whether it’s researching case law, counseling clients, discussing law with colleagues, or simply participating in yearly CLE.[1] By and large, one would be hard pressed to find a lawyer who doesn’t have an opinion about the law.

No matter what drove them to the profession, along the way, lawyers likely encounter laws that they feel need to be changed or identify social problems that the law fails to address. And just like normal people, when lawyers see a problem or an injustice, they may feel called to protest for a cause that hits close to home. The question then becomes: What should lawyers know about their right to protest?

A crowd gathers to peacefully protest police violence in Washington, D.C., in June 2020.
A crowd gathers in Washington, D.C., on June 6, 2020, to peacefully protest police violence. (Photo: Clay Banks via Unsplash.)

Lawyers have the same First Amendment rights as everyone else

Provided that lawyers maintain confidentiality with their clients, there are no rules of professional responsibility that supersede lawyers’ First Amendment rights to freedom of speech or peaceable assembly in the United States. Model Rule of Professional Conduct 8.4 outlines actions that are prohibited for the purpose of maintaining the integrity of the profession, but it neither explicitly nor implicitly forbids lawyers from engaging affirmatively in peaceful demonstrations.

On the contrary, there is reason to believe that the Model Rules may even encourage lawyers to engage in protests as part of their professional duty to serve the public good. Thus, when considering protest action, it is important that lawyers review the rights of protestors and the restrictions imposed on those rights.

Even with a well-developed understanding of the law and their rights, lawyers should be aware that they face the same risk of arrest as other protestors

Currently, there is pending litigation involving the 2019 incident in which police arrested Jamaar Williams, a public defender. On July 12, 2019, Williams was arrested while involved in a protest against U.S. Immigration and Customs Enforcement (ICE) roundups. A probable cause statement noted that Williams was arrested on suspicion of aggravated assault against two police officers, as well as unlawful assembly and blocking traffic. The police officer who arrested Williams testified that he only did so at the orders of another officer, and he may have arrested the wrong person altogether.

While prosecutors with the Maricopa County Attorney’s Office (MCAO) quickly dropped the charges for aggravated assault, they still pressed charges against Williams for resisting arrest. I spoke with members of the Arizona chapter of the National Lawyers Guild (NLG), who took the position that police and prosecutors targeted Williams because he is a lawyer and a leader in his community.[2] Williams himself previously made a statement to ABC15 that MCAO and Phoenix police officers probably charged him with more crimes to cover up for their mistake.

Alternative to demonstration: Lawyers as legal observers and associated risks

Lawyers who want to support a movement by protecting its activists also have the option to become legal observers. The NLG is one major group that provides training for individuals who want to practice legal observing. These individuals help document the actions of law enforcement during a protest and keep track of protestors who are arrested so they can provide an objective account and video evidence of what took place.

However, despite the legal observers’ neutrality, there are still risks associated with the job. SCOTUS blog recently discussed a petition by two attorneys, Sarah Molina and Christina Vogel, who served as legal observers at a demonstration and argued in Molina v. Book that their first amendment rights were infringed by police. 

During a 2015 protest, Molina and Vogel wore green hats that identified them as legal observers affiliated with the NLG. After the crowd was ordered to disperse and a majority refused, police used tear gas against the protesters. Molina and Vogel left towards Molina’s home, but encountered police again and were subsequently targeted with tear gas while standing in Molina’s front yard. The Missouri district court was ready to try the case before a jury, but the police officers appealed.

The result was a very divided ruling against the attorneys, in which the Eighth Circuit court reasoned that the attorneys’ First Amendment rights were not infringed because the “pro-protest” message of their green “National Lawyers Guild Legal Observer” hats was not constitutionally protected political speech. According to Molina and Vogel, the Eighth Circuit’s ruling sets a very concerning precedent that would allow the government to “retaliate against speech simply because a written message appears printed on clothing and its substantive meaning is arguably unclear.” 

Conclusion: Protests carry risk, but an informed protestor can create a safer environment

Lawyers are well-equipped to engage in peaceful and persuasive protest. At the same time, the risks and realities that accompany protests can lead to harsh consequences. Lawyers particularly like to know what they’re up against, and even though this information sheds a difficult light on how America treats even informed protestors, lawyers are also the same people who do not shy away from challenges. A lawyer equipped with the knowledge of what they may face while protesting can be a beneficial weapon on behalf of their cause.

[1] CLE is an abbreviation for Continuing Legal Education.

[2] The author of this post currently works at MCAO and is not commenting on this case in her official capacity.

Sara (she/her) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Before law school, Sara graduated from Arizona State University with a B.A. in English and a minor in political science. Her legal interests include immigration, appellate, and international law. Outside of school, Sara enjoys writing, reading, and traveling. She can be found around the Phoenix valley trying out new bookstores and cafes.

Published by Law Journal for Social Justice at Arizona State University

The Law Journal for Social Justice (“LJSJ”) is the first student-run and student-created online journal at Sandra Day O’Connor College of Law. LJSJ aims to edit, publish, and produce notable works through its online website from legal scholars, practitioners and law students. LJSJ also publishes twice a year, featuring articles that focus on important, novel and controversial areas of law. LJSJ will provide a fresh perspective and propose solutions to cornerstone issues that are often not discussed, which may also have the potential to positively impact local communities.
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