1st Amendment in Question: The Durham Notification Rule

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Following a summer of frequent and rowdy protests in Durham, notably the purported Ku Klux Klan march and a mob’s destruction of a Confederate statue, Durham County is now considering a policy change which would require protestors to notify the county 48 hours prior to a protest on county property if more than 50 individuals are expected to participate. If protesters failed to notify the county, they would be liable to be prosecuted as trespassers.

 

Many, including some on the Durham County Board of Commissioners, have expressed significant doubt surrounding the integrity of the policy change. They argue that it may stand as a repression of the right to assemble, as protected in the 1st Amendment of the United States Constitution.

 

“I want us to be very careful that we don’t put any local rules into place that infringe upon the right to assemble…I do think the requirement for 48-hour notification will prohibit spontaneous protests,” explained Commissioner Heidi Carter to The News and Observer.

 

Many of the protests which have occurred in the past year have taken place on county property, most notably the County Courthouse and The County Jail. The enactment and enforcement of this policy could render many protests ineffective.

 

The catch of this potential policy change is that it would be enacted as an administrative policy and would not require a decree from the Board. While the Board’s input will be noted, the County Manager’s Office will ultimately draft a revised policy. There is no timeline yet for when the policy could be finished.

 

If there were to be a vote within the Board, Commissioners Chair Wendy Jacobs said that she would vote against it. Commissioner Carter expressed similar motive.

 

“I am really concerned that this going to put a gag on legitimate protests,” said Carter.

 

This mood was echoed by many in the activist community in Durham. The policy counsel for the American Civil Liberties Union of North Carolina (ACLU) stated that the need to rapidly organize and protest off of a current event was essential to the protection of American democracy.

 

“As we’ve seen in North Carolina and across the country, quickly organized demonstrations play a crucial role in our democracy,” said the policy counsel..

 

Protesters in Durham, aligned with the distresses of the ACLU have described a similar value for the importance of demonstrations, especially in today’s political divisions. East Senior, Talia Pomp, who protested frequently during 2017, was upset at the prospect of a silencing of community groups.

 

“I worry that such a rule would halt the ability of groups to quickly demonstrate and speak up on big issues,” said Pomp. “It feels like an unnecessary response to peaceful demonstrations, and a reduction of the effectiveness of our rights.”

 

However, some Commissioners and community leaders expressed support for the policy, citing recent questions of safety for all at protests with clashing political factions.

 

“It would have been very easy for a child to be injured, and we would all be wishing that we had done something about it,” explained Commissioner Howerton when discussing the dangers of protests without proper safety apparatus.

 

The Durham County Sheriff also expressed significant support for such a rule, describing the lack of safety at some summer protests at which weapons were brought to supposedly peaceful demonstrations. The rule would allow police to restrict protest movement and location more than previously.

 

The question of free speech and the future ability to organize and protest will remain under scrutiny until a decision is made by the County Manager. Until then further discussions are sure to follow in the community and within the Board of Commissioners.

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