On First Amendment Rights: Is There Really a Line Between a Protest and a Riot?

Abstract

Society has been seen to progress in many ways, which causes some legal standards to become ‘out of date.’ To address this, laws must change to adapt to the current state of society. There has been a trend showing a significant problem with protests turning into violent riots. This has most recently been seen during the George Floyd protests- as protesters have refused to obey police, destroyed property, and clashed with law enforcement causing injury and death. The Incitement Standard cannot be applied to situations presented today. Therefore, when interpreting First Amendment Rights, courts should abandon the Incitement Standard and return to the older standard of Clear and Present danger. To investigate this issue, an analysis will be conducted examining violent behavior in other protests, the history of speech regulation, the flaws of the Incitement Standard, and the danger the Incitement Standard presents. After evaluation, the Clear and Present Danger Standard will provide law enforcement with more power to eliminate the potential of violence in protests by allowing law enforcement to (1) make justifiable arrests that follow the Clear and Present Danger criteria, (2) closely monitor social media and (3) arrest protesters with weapons. It will be concluded that these changes will create a safer enforcement to protest in, and a defined line as to what is a protest, and what is a riot.