On the face of it, Hedy Epstein looks an awful lot like Eleanor McCullen, the “gentle sidewalk counselor” whose desire to teach and leaflet and persuade her fellow citizens was granted so much solicitude by the court in the case that bears her name. Like McCullen, Epstein had an explicit political message to impart: She wants National Guard troops out of Ferguson and a special prosecutor appointed to investigate the killing of Michael Brown. It’s hard to credit this message as less important, less informed or informative, or less urgent than McCullen’s. And Epstein’s crime, failing to disperse, is precisely the behavior granted First Amendment protection in McCullen.
It is impossible to see the two types of protest (or counseling) as fundamentally different, except for the fact that the court now says it does. The fear is that race plays a critical role in one arena and not in the other. Perhaps the difference between “counseling” and protesting ultimately just comes down to religion, which would be extremely problematic for constitutional purposes. Maybe it’s no coincidence that the calming of the police crackdown the last few nights coincides with more and more demonstrations in Ferguson being organized by faith groups and being openly religious in tenor. But if we afford religious protest (and the act of protesting with rosaries) more freedom than secular protest on the streets of Missouri, we have a different First Amendment problem.
To be sure, opponents of the Ferguson protests will say that once the protesting is conflated with looting, it’s fine for the police to step in. But it can’t possibly be the case that the Massachusetts abortion law—enacted after actual killings happened at abortion clinics—is less necessary than the squelching of looters. And even if you concede that some of the looters are indeed dangerous, the bulk of the protesters are no more looters than the bulk of abortion protesters are murderers.
Reasonable minds can and have differed on whether the court’s decision in McCullen was correct (in fact, the two of us view McCullen quite differently). But there is surely agreement that the same rules need to apply to all protest regardless of who is speaking and what is being said. The court in McCullen told a story about a kind-hearted grandmother and then proceeded to craft a rule that fit her. They even allowed that rule to expand to the other speakers—including the mean, loud aggressive ones—because the buffer zone was unconstitutional for all. In Ferguson, however, the story being told has a very different focus. There the attention is on the troublemakers and everyone else is getting swallowed up in their shadow.
Justice Felix Frankfurter once wrote, “It is true ... of a journey in the law that the place you reach depends on the direction you are taking. And so where one comes out on a case depends on where one goes in.” As we become a country that is ever more inclined to arrest, detain, pepper spray, and shoot its protesters, the rest of us should seriously contemplate becoming a nation of “sidewalk counselors” to stop this trajectory. Maybe all you need to do is say, “Good morning,” hold out a leaflet, and you won’t get tear-gassed.