There Is No 5-Second Rule for the First Amendment, Ferguson

UPDATE 10/06/2014: Thanks to the ACLU of Missouri’s great legal work, there really isn’t a five-second rule for the First Amendment. A federal court today entered an order preventing the state from enforcing the rule, stating that “the practice of requiring peaceful demonstrators and others to walk, rather than stand still, violates the constitution.”

This piece originally ran at POLITICO.

Tear gas, rubber bullets, and assault weapons; free speech zones, gags, and press pens: This is the arsenal of the police state. Some of these tactics are physical. The other ones—all the more pernicious for their quiet coercion—impose a veil of silence over the actions of law enforcement. And each of these weapons has been unleashed on the people of Ferguson, Missouri, since the killing of Michael Brown.

In the first few nights of protest, Ferguson and St. Louis County police responded with a truly inconceivable show of force. Officers suited up in DHS-funded military hand-me-downs, outfitted with goggles, machine guns, sniper rifles, riot gear and gas masks. Distressing warzone-like images flickered into the public consciousness: photos of armed police cohorts pointing loaded automatic weapons at citizens with their hands in the air, women and children's faces streaming with tear gas and milk and white officers targeting black protesters like it's Selma circa 1964.

The message was clear: The public is the enemy. And as we the people started getting that message, Ferguson starting working harder to shoot the messengers.

Police repeatedly ordered protesters to turn off cameras and cell phones recording law enforcement. In response, the ACLU of Missouri had to go into court to seek an emergency agreement reminding the police that photographing them is a constitutionally protected right. Roving SWAT teams, perplexingly, raided a McDonald's and arrested two journalists engaged in the suspicious act of recharging their phones. Police aimed tear gas canisters directly at members of the press. A local news crew caught police riding up afterwards and disassembling another crew's media equipment.

Then came more systemic approaches to shutting down the speech of the public and the press. First: a nighttime curfew, applied to a broad area, whose details were obscure and seemingly applied ad hoc on the ground. Of the seven people arrested that night, three claim to have been on their own driveway. Of course, since journalists were subject to the curfew, we don't have a lot of objective facts about what happened in those wee hours.

That curfew only lasted a few days. It was then replaced by a "no standing" rule of dubious origin and authority, under which police threatened the arrest of anyone who stood still for more than 5 seconds, day or night. That also included press. CNN's Don Lemon was pushed along the sidewalk on live television, after being told by authorities to be exactly where he was. As he rightly said to his audience: "Imagine what they are doing to people when [sic] you don't see on national television, the people who don't have a voice like we do."

However, reporters were allowed to stand still—so long as they stayed in the "press pen," a designated space so far off from the action between the cops and the protesters that reporters who tried to witness anything of consequence were tear gassed. And the police didn't hesitate to show they meant business, arresting Getty photographer Scott Olson when he strayed. Like other reporters arrested, he too was promptly released without a report or charges. The point of these repeat press arrests appears to be preventing accountability, not protecting public safety.

And officials have insisted they're not stopping.

The ACLU again went into court on an emergency basis to challenge the 5-second rule. The court declined to shut it down, relying on the state attorney general's word that the city had set aside a designated "free speech zone," which provided ample opportunities for protest. But when ACLU of Missouri staff went to confirm that description after the hearing, the area was empty and off-limits to the public. As of yesterday, the state did ensure the area was open, but it's totally inadequate. Removed from the symbolic location of Michael Brown's death, isolated and sterile, the "free speech zone" is truly where free speech goes to die. And it means that the rest of Ferguson is officially a speech-free zone.

Each of these tactics is an unconstitutional restriction on the rights of speech and assembly in its own right. But this constantly changing whirlwind of restrictions further deepens the constitutional sinkhole Ferguson has become. When residents are bewildered as to when, where, and how they can gather and speak without risking arrest, that uncertainty itself casts a shadow of intimidation and self-censorship across the right of free speech. And of course, that uncertainty is often happening at the business end of a high-powered rifle.

So why, especially in light of our strong First Amendment traditions regularly upheld by the courts, has Ferguson discarded the First Amendment? Perhaps it's because the stakes are so high.

The more news and images we see streaming out of Ferguson, the more we have visceral evidence of the systemic problems of race, inequality, militarization and an us-versus-them cop mentality that are fueling continued protest and righteous outrage. And the more we know about Ferguson, the more concern we should have. An astoundingly non-diverse police department. Financial incentives to over-enforce minor infractions. Charging a victim of police brutality for getting blood on officers' clothing. These aren't mere anecdotes. They are threads in the fabric of a truth we the people have a right – a duty – to reveal and unravel.

As our Supreme Court recognized in Roth v. United States, "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

There is much political and social change desired by the people in Ferguson, and throughout our country. Not one more unarmed young black man should die at the hands of the police. Not one more local police force should get financial incentives to militarize and mobilize against its own citizens. Not one more photographer should risk arrest by doing her job. The iconic images coming out of Ferguson illustrate the urgency of change.

So we the people must give thanks. We give thanks to the journalists who have been zip-tied in the fight for transparency. We give thanks to the tweeters who crowdsource the eyes and ears of America. We give thanks to those on the streets of Ferguson who lift up their camera phones to bear witness to the truth in real time. Because they are the agents of the change we must all seek together.

Our words, our voices, and our pictures are the most devastating weapons of all to entrenched systems of injustice: systems that led to the death of Michael Brown and to the anger it spawned.

Learn more about the freedom of the press and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

View comments (9)
Read the Terms of Use




Isn't free-speech zone anywhere in the United States of America, since when are you only allowed certain areas of this country to be free-speech zone? I am sure putting in the leaders in China are sitting back watching this on TV laughing their butts off.


So now there needs to be a law as to how far they can push a recording crowd back from the active scene. The police departments seems to find ways around the federal laws. What will the government do, to these departments that are constantly violating the laws?

Before killing ...

Dear Miami-Dade Commendations Office: I forward you this, to your office, not to another, because I wish to COMMEND these officers for being there to be the officer backing up the others holding the door ready to use it (commendably brilliant, one can't help notice, wise) and the other using his foot, (commendably retains oversight as back-up and keeps his gear away from needless exposure to risk of being commandeered... good positioning, even to having one's foot placed directly onto a weak portion of the suspects body if done properly) - So to me, they are heroes for being there to have done these things, but not for having actually done them, because they did not carry out their proper police duties properly - so there is a BIG difference between being in the right place (kudos to them for that) and for doing the right thing once in that right place (didn't do right thing so should turn themselves in) but they did not do the right thing - but they CAN now.

By doing the right thing now, although they did not then, at the time of the incident I am about to report, these officers can be heroes instead of being vilified as they surely will be otherwise. Please pass this advice, these exact words of COMMENDATION on to these officers. They can be HEROES and deservedly so, or painted as villains or potential villains by the public. I'll be their cheerleader, and many on the far-right will be taking them for fishing trips on their yachts (I'm guessing)

I wish you to forward this to these good officers, and to specifically make use of your own good offices at the commendation department because WE ARE ALL ON THE SAME SIDE WHEN WE ARE ON THE SIDE OF GOOD...

Dear Broward County, Florida Sheriff Scott Israel,

You have done more to restore the public trust in Florida police than any other peace officer in Florida when you stopped the incarceration of children - thank you for myself - and from all children too young or too busy to know all that you have done for them, thank you.

You are a public hero for taking a stand. It is also a stand against those that seek to enact justice upon children - as are we all occasionally, even we adults - and as were the Miami-Dade officers the other day who arrested a suspect in the shooting death of a man in a wheelchair. They need your help.

Are "criminals" equals? Are they still 100% human, or a bit less? How do we treat them, as equals? How do police and wardens treat the guilty, how do we? How do the guilty treat themselves?

Broward County Police and Sheriff's, please speak to our Florida Miami-Dade neighbor officers about what to do about this issue of police-abuse - Speak to them for the greater public good and to maintain respect for the force, deserved respect based on right-actions, as are called-on for now. All police in South Florida will be seen by many as a contiguous entity. It would be a "game-changer" and set an awesome example to other officers of how to act were the involved Miami-Dade officers to all, as a group turn themselves in, and self-report. If someone were to have any connection whatsoever to get the message to them to do this, how awesome would that be - for them as well. The public will come to either see them as enemy, or as heroes, in a very real sense - Hero or criminal, seems an easy choice, but only if one knows one is making it... and that the clock is ticking, as of the publishing of this very missive, possibly, and likely many others like it, some begun sooner than this, more to come later... they will be charged eventually, they will be found guilty, they will then be criminals, not hero's. Their choice. Tic-toc...

News and video of this particular case, and others like it, air regularly on our LOCAL news, so to say it is out of your jurisdiction is untrue - what is the "jurisdiction" of the reputation of police in Florida? Knowledge of a crime, especially by other officers, anywhere in the US one would think, would be worthy of a phone call to the "proper authorities." The officers will be fine if everyone does the right thing. In fact, we will all be better of if we all start doing the right thing. Right now, lets start here.

Strongly-advise the directly-involved officers and witness-officers all apologize publicly immediately.

Public servants must hold themselves to a different standard, should be the advice that these Miami-Dade officers give their lawyers if those lawyers wish to represent them.

Miami-Dade officers recently apprehended a man that had shot another man in a wheelchair, a helicopter video provided real-time clear views as the take-down occurred.

The man is reported later on the nightly news as having suffered cuts and scrapes on his face from driving so recklessly prior to being caught - what NONSENSE - the video shows why his face is bashed and scraped-up, clearly. These officers must be, need to be, reprimanded - as must all those officers nearby - or else this cancer will grow and we will have more deaths of more black men at the hands of officers using unnecessary deadly force whenever challenged. Watch the video of today's arrest by Miami/Dade officers. Watch it... What excuse is there to slam a door inward at a person as they follow your commands to exit outward, like snapping a wet-towel in a testosterone-fueled gym locker-room?

The officers intent and motive appears to be, as clearly shown/displayed in the video, to be to do as much harm as one can to the surrendering man without getting caught doing it. It is as if they know camera's are watching, and believe their subtle actions will be allowed to slide by, by their fellow officers, which is apparently correct.

ANOTHER, SECOND fellow officer in particular apparently not only approved, but enthusiastically continued with his own punishable crime, (TO THOSE CLAIMING to not have ones eyes on the action as it goes down or of having ones eyes on what transpired and choosing not to report it accurately, this is not OK) - This second officer used his booted foot as a weapon not to restrain but again, like the door held by office ONE, a short violent-snap-kick forward to BASH the face into the ground of the man already down on his hands, although doubtless unsteadily after being body-slammed by a door going the opposite direction one is. Note that there is added damage done by one adding the downward speed of the "balls" already moving down to kneel to that of an accelerating boot - also note that the offending boot quickly snaps-back and then moves forward a second time, aggressively as before, but more fluidly, without a jerk at the end, all the way through, follow-through plus some, for good measure as if his face had the capacity to slither away on its own, not intended to kick-bounce the face into the pavement like a ball as before. This time the offending boot of officer TWO presses down, smushes-down one must guess, with his weight from above, shifting, grinding, as needed, perhaps - one would guess/presume as based on prior behaviour.

THIS is NOT OPINION, it is ON VIDEO despite the spin put on it by the press.

Note the spin placed upon the young children pulled over "Mistakenly" in Texas by innocent police officers following an incorrect description according to the headlines - NONSENSE - The officers state on the video itself that they had the vehicles tag number - the kids were likely playing airplane-wing with their hands against the air rushing by an open window - and a black/dark hand out a window is seen as dangerous by the white community as much as a loud knock with police sirens and walkie-talkie sounds from the front door does not bring thoughts of "peace" officers arriving to rescue a neighbors cat up ones tree as the first thought on the minds of most persons of color. These truths are both equally true - and equally sad - as is a press that spins to point of falsification and propagandizing the news, not merely spinning it, which apparently is now considered acceptable, it is not, or should not be.

The man murdered in St,. Louise two miles from Ferguson dared the police to shoot him, and seeing the crazed murderous police match his crazy murderousness, and add considerably to said insanity by pointing their guns not just at him, but all of those behind him and so HE MOVED AROUND AND TO THE SIDE TO AVERT THE GUNS AIMED AT THOSE BEHIND HIM, NOT TO "MANEUVER TO ATTACK AND CULL FROM THE HERD? THE ONE OFFICER ON THE RIGHT SIDE OF THE POLICE CAR - The police officers pointed their guns at the man challenging them to shoot him and also at the store and in the lot of the business the suspected thief had just exited with two stolen soda's placed provocatively, and with great ceremony, onto the ground as the man awaited the police - and six plus bullets fired killing him dead within TWENTY-SIX seconds of their pulling up, seeing themselves challenged, and murdering the man as he stood a distance away in front of them - Pull-up, get-out, Bang-bang-bang-bang-bang-bang - 26-seconds beginning-to-end, another young black childs life-ends, is over, and he lays in pooling blood in the open street. Familiar?

Long ago, native Americans called it a coupe' challenge, I believe, and something similar was done in Europe about the same time, in the Dark and Middle Ages, called "throwing down the gauntlet" - as when putting out a challenge. Two dead black men and one car full of middle-school kids and their Mom terrorized - and lies, bold and up-front in the headlines and leading paragraphs of all three stories - coincidence? A very-bad (shot a guy in wheelchair) black man is car-door-slammed and face-stomped surreptitiously by two officers as he is clearly in the act of attempting to comply with their commands. No - no - no stomping, no door-slamming - No shooting to kill - No shooting for the center-body-mass as part of ones sick-twisted militaristic and wildly inappropriate aggressive combative style of training - No, no, no MORE inappropriate behavior - zero.

Onward to an ever brighter future, thanks to our kids.


...and would you bunch of hooded FREAKS running around in bedsheets crawl back into whatever hole you came out of, or at least show your faces?
Everybody knows the KKK and their wanna-bes wear those hoods bc they're too much of a coward to show who they really are. But you can tell who they are anyway bc they can't cover up everything.
In the Harry Potter books not one of the Death Eaters, who are equivalent to KKK and/or Nazis, is fooling anybody. Harry can tell who they are by their body movements and other things that identify them, leading the reader to believe the author thinks they're the biggest jokes of all.


Many thanks to ACLU and the ACLU of Mo. for the work you have done and are doing in Ferguson. It is to be hoped that what's been happening there stays in the public eye and leads to effective measures toward demilitarizing and instilling a "serve and protect" attitude in police departments across the nation. The police should understand that regaining public respect is in their own best interests as well as ours.


*I* think anyone who calls someone a "nigger-lover" is a joke. And not even a GOOD one at that. They're paTHETic joke, like the back end of a burro..


Dear 'Before Killing there is Shoving - Prevention can Happen,'

I have no choice but to assume you're from a small town. Otherwise, I don't know where you get the idea that all killings have a 'leading-up-to-the-event' occurrence.
I've seen and heard of cases where people come onto the scene like a mad-person and just start blowing away victims. It happened in Texas no more than 2 months ago. He came in and started shooting everyone in the family and proceeded with the intent of killing the grandparents too, but was stopped because one of the people he thought he'd murdered was in fact playing dead until she could alert police he was headed to her grandparents house to kill them too.

Maniacs don't give you ANY warning that they're going to kill and I do believe that some of them slip through the rigidities they're trying to set up so psychopaths don't become police officers but these slippery people find a way through the barriers.


It,s a lack of morals and respect that should of been taught to you when you were young. I witness it everyday in my neighborhood, kids walking down the middle of the street and walking on and over cars that are parked in the street. When school let's out it's like a parade with the kids in the street and the police behind them on the loud speaker telling them to get on the sidewalks. Do they listen, NO! Again lack of morals and respect. First rule: know the difference between right and wrong Second rule: doing what is right . Don't give a person or a Law Officer a reason. Don't blame others for your own downfall's go back to school pick up a book and start reading.

Stay Informed