“To protest against injustice is the foundation of all our American democracy.”
— Justice Thurgood Marshall.
Protests have long been part of the social and political fabric of the United States.
From the colonial era
to the present day,
protest movements have helped shape the nation’s trajectory. Protest is not just an act of dissent but an essential expression and practice of democracy that challenges abuses of power.
Indeed, major social justice victories—the abolition of chattel slavery,
the expansion of suffrage to women,
the enactment of the New Deal,
the passage of the Civil Rights Act,
the start of the LGBTQ rights movement,
and more—were won in large part due to protest movements that opposed the extant status quo.
Despite their foundational role, protests in this country have been met with fierce opposition, police as well as popular violence, and political backlash.
The First Amendment guarantees the rights to free speech and peaceable assembly.
Yet the legal history of protests and government responses to them has not always aligned with the spirit of the First Amendment: Many movements have faced suppression through state-sponsored violence
as well as legal (and extralegal) restrictions.
True, multiple major Supreme Court decisions have protected the rights of protesters and developed a jurisprudence identifying the core, and some outer limits,
of the right to protest.
But existing First Amendment law remains murky and does not always provide a clear answer when it comes to an individual protester’s rights.
Furthermore, the existence of a formal legal right—even if it might offer retroactive relief (e.g., damages)—may not actually protect a protester against adverse state action.
At times during its history, Columbia University has taken aggressive action to suppress student dissent.
In 1936, Columbia expelled Robert Burke and two other students who led an anti-Nazi demonstration.
Burke stated that his expulsion presented the question of “whether the president, dean and trustees of Columbia will tell me what to think and do or whether I shall do what I think is right.”
In 2024, then-Columbia President Minouche Shafik suspended students participating in a pro-Palestine encampment and subsequently authorized the New York Police Department to forcibly sweep the encampment and arrest over 100 students.
These two episodes, nearly a century apart, demonstrate how Columbia has at times deployed both internal disciplinary processes and external governmental actors against its students.
Next, Professors Tabatha Abu El-Haj, Evelyn Douek, Jeremy Kessler, and Eugene Volokh, as well as Charles F. Walker, a former law firm partner and pro bono co-chair, discussed “Protests and the Constitution,” focusing on the First Amendment. This panel addressed the Amendment’s speech–conduct distinction, hate speech, online content moderation, and the regulation of public versus private universities. The panelists also reacted
to Abu El-Haj’s Symposium piece, A Right of Peaceable Assembly, in which she proposes an independent Assembly Clause doctrine, distinct from the existing free speech doctrine derived from the First Amendment’s Speech Clause.
She argues assembly doctrine provides a more apt framework for balancing protesters’ rights against social costsby recognizing that the public’s act of gathering and taking up space itself possesses political value, separate from the protest’s expressive message.
The second panel examined “Protests Through History.”
Professors Deborah Dinner, Bernard E. Harcourt, Karuna Mantena, Dylan C. Penningroth, and Etienne Toussaint discussed common trends in racial justice, gender equality, and anti-war movements, as well as the lessons that can be drawn from historical protest movements and the responses they encountered. Toussaint’s Symposium piece, Afrofuturism in Protest: Dissent and Revolution, chronicles the history of Black protest movements in the United States from the colonial era to the twenty-first century and examines these movements’ philosophical underpinnings.
He argues that the Black radical tradition reveals protest to be not just a right, but a moral imperative, and illustrates how modern protest movements can draw inspiration from that tradition.
Professors Grant Christensen, Elora Mukherjee, Karen J. Pita Loor, and Gali Racabi, as well as law student Kevin McCarthy, spoke together on the third panel, titled “Who Protests, and Where? Examining Protest Spaces.”
Each panelist offered their perspective on a particular type of protest or protester: Christensen discussed protests on indigenous reservations; McCarthy discussed protests by incarcerated individuals; Mukherjee discussed the unique considerations noncitizen protesters must face; Loor discussed racial justice protests and policing; and Racabi discussed labor strikes and workers as protesters. The panelists compared how protests in different spaces are regulated and examined what makes each type of protest more likely to shift public sentiment or secure institutional concessions. Christensen’s Symposium piece, The Right to Protest in Indian Country, asserts that between the three potential sovereigns implicated by protests on indigenous lands—the tribe, the state government, and the federal government—tribal governments should be the sole regulator of these protests.
He then explores how tribes have historically regulated protests and argues for tribes to take a measured approach to protest regulation despite not being bound by U.S. constitutional restraints in the same way as a state or federal government.
The fourth and final panel, “Policing Protests,” featured Professors Amber Baylor, Jenny Carroll, Rachel Moran, and Sunita Patel as well as Nick Robinson, a senior legal adviser at the International Center for Not-for-Profit Law.
The panelists discussed the regulation and policing of protests, including the passage of new antiprotest laws as a reaction to protest movements, the disproportionate impact that protest laws have on marginalized people, and the legal remedies available when protest regulators violate protesters’ constitutional or statutory rights. The panelists also commented on Moran’s
and Patel’s
Symposium pieces. Moran’s piece, Overbroad Protest Laws, examines the First Amendment’s overbreadth doctrine as it applies to protest laws and identifies the harms of overbroad protest laws.
She also enumerates five characteristic features of potentially overbroad protest laws and uses them to analyze the constitutionality of several recent protest laws.
Patel’s piece, Policing Campus Protest, discusses the various approaches universities have taken to regulating campus protests throughout history, identifying internal and external pressures on university regulators and analyzing three recurring tactics that campus police use when policing protests.
Near the end of the piece, she shares some historical examples of when campus administrators opted to negotiate with, rather than punish, student protesters, suggesting that these moments might provide a lesson for universities going forward.
The conference concluded with a keynote address by Derecka Purnell, a movement lawyer and activist.
Purnell explored the relationship between movement lawyering and out-on-the-street activism, identifying a tension between working within a system and seeking to radically change a system from the outside.
This Symposium Issue of the Columbia Law Review features the five pieces described above, as well as Hansford’s lecture. The Issue intentionally places these six works of scholarship, each examining aspects of protest law, in dialogue with each other. A few examples help illustrate this. Abu El-Haj, Hansford, and Moran each take different approaches to addressing shortcomings in existing First Amendment doctrine.
Patel and Toussaint both turn to history as they illustrate how campus protest policing and the Black protest tradition developed.
Christensen, Moran, and Patel address the issue of protest regulation—discussing who should regulate protests and how they should do so.
Abu El-Haj and Toussaint both propose new frameworks for understanding protests as a part of our society: the political value of a public assembly and protest as a moral imperative.
This list of connections and throughlines is not exhaustive. Each scholar’s contribution seeks to spur further thought, discussion, and scholarship in the field of protest law.
Finally, in addition to engaging with pressing legal and philosophical questions surrounding the law of protest, this Symposium fostered a sense of community among the scholars, practitioners, students, and activists it brought together.
In that way, the Symposium mirrored the protests it examined: Protesters come together with a shared goal—to challenge injustice and demand accountability—and in doing so, they, too, develop a feeling of community.
That feeling is one of the most powerful, inspiring, and sustaining aspects of any protest.
There is an energy that emanates from collective action, reverberating through chants and slogans, transcending differences in background, ideology, or personal experience. Protesters forge connections with one another that are not simply tactical but deeply empathetic, human, and long-lasting.
Ultimately, protests reinforce the notion that no one is alone in their struggle: Together, in solidarity, all share a commitment to making the world better today and for future generations.