Streets and Highways are Becoming a Big Roadblock to Free Speech

The right to free speech could soon come face-to-face with the right of way this summer.

Now that many campuses are clear of encampments, protests against Israel's assault on Gaza may shift from quads to roads, setting the stage for potentially volatile clashes due to America’s dependence on cars — and the very thin skin of drivers and their political enablers.

“It absolutely drives people nuts when roadways get obstructed by demonstrations,” said Steve Vaccaro, a lawyer who represents cyclists and pedestrians in New York. “A lot of people feel like politics should be optional, but [protests in the street] affect them. There has to be a balancing of traffic, the utilitarian purposes of public spaces and the First Amendment [use] of public spaces.”

These days, however, motorists are in the driver's seat. Cars are so ingrained in American life that the public is largely unsympathetic to any demonstrations that disrupt roadways. Only 12 percent of Americans said that blocking a road to express a political view is always or usually acceptable, while 80 percent said the tactic was unacceptable, according to an October 2023 YouGov poll.

No wonder some elected officials encourage motorists to violently move protesters out of the way. 

“I encourage people who get stuck behind the pro-Hamas mobs blocking traffic: take matters into your own hands to get them out of the way. It's time to put an end to this nonsense,” Sen. Tom Cotton (R-Ark.) tweeted on April 15, after Gaza sympathizers occupied bridges in San Francisco and Brooklyn.

Cotton, who once wrote an op-ed calling for the military to quell Black Lives Matter events in 2020, told Fox News, “If something like this happened in Arkansas on a bridge there, let’s just say I think there’d be a lot of very wet criminals who would be tossed overboard, not by law enforcement but by the people whose road they’re blocking.”

Cotton’s notion of free expression has been roundly condemned in the media. But his views are hardly uncommon among those who prefer orderly commutes over temporary political actions. 

When a handful of pro-Palestinian demonstrators locked arms and held banners on a ramp near JFK Airport in December, New York City Mayor Eric Adams suggested the NYPD would remove traffic obstructions in the future.

“I don’t believe that people should be able to just take over our streets and march in our streets,” Adams said, ignoring America's long history of making social progress in just such a manner. “I don’t believe people should be able to take over our bridges. I just don’t believe you can run a city this complex where people can just do whatever they want.”

Five months later, cops punched and shoved several participants in an annual Nakba Day rally in Bay Ridge in order to clear the roadway. Adams defended the department’s response, saying, "You don't have the right to spit in the face of police officers. You don't have the right to ride on top of a bus. You don't have the right to stop the flow of traffic when emergency calls of service from those who live in that community. You don't have the right to disobey the rules."

In one sense, he's right: there’s no legal right to block traffic on a roadway, strictly speaking; anyone who obstructs local traffic laws without a permit could be penalized for violating local traffic laws.

But the right to peaceably assemble should win out in most cases, legal experts say.

“Your rights are strongest in what are known as ‘traditional public forums,’ such as streets, sidewalks, and parks,” Vera Eidelman, a staff attorney with the ACLU Speech, Privacy and Technology Project. “You also likely have the right to speak out on other public property, like plazas in front of government buildings, as long as you are not blocking access to the government building or interfering with other purposes the property was designed for.”

And despite the New York City mayor's short view of history, public streets have long been where America’s most-heralded social justice movements have sought to move public opinion.

During World War I, suffragettes blocked traffic in front of the White House and served jail time for demanding their right to vote. Martin Luther King Jr. and other civil rights leaders marched on roads and bridges throughout the South to pressure President Johnson and Congressional leaders to enact voting rights legislation in the 1960s. Two decades later, Larry Kramer and activists with ACT UP held “die ins” on streets to shame public health agencies into addressing the AIDS crisis. And in 2020, Black Lives Matter held marches in multiple cities throughout 2020 against police killings and misconduct after the death of George Floyd.

And there's a solid reason to calcify traffic.

“It’s an effective means of protest, it’s certainly an effective way of getting people’s attention, and it’s disruptive because it requires drivers to stop their cars and wait for people to cross the street,” Justin Harrison, senior policy counsel at the New York Civil Liberties Union. “It’s controversial, divisive, and it works.”

The police reform movements that swept across the country four years ago were among the largest in the country’s history and were supported by two-thirds of the public, according to Pew Research Center surveys, making it easier to stomach spontaneous traffic disruptions. 

But a backlash has been brewing, with some localities even criminalizing public assembly that violates traffic laws. The Republican-controlled Louisiana legislature is close to passing a law that would make it a misdemeanor for anyone who coordinates a demonstration that slows or blocks traffic, with a fine of up to $750 and six months in prison (the legislature also sought to exempt motorists from civil penalties if they strike a pedestrian with their car). And in New York, Assembly Member Stacey Pheffer Amato, a Democrat, proposed a bill earlier this year that would make halting traffic on state roads a class D felony with a maximum punishment of seven years in prison.

These measures, even if they don’t become law, have an effect of chilling free speech, advocates say.

“When you have traffic laws that you treat as a violation, whether you get a traffic ticket or a small fine, it’s easy for police to not enforce that and it’s easy for prosecutors and judges to drop those cases at their discretion,” Harrison said. “When you start talking about laws that change the violation to a misdemeanor or a felony it’s a lot harder.”

Even though there isn’t a specific constitutional right that covers public spaces and roadways, cars didn’t exist back in 1787, so U.S. courts have typically protected First Amendment rights for those who join together to express their opinions in a public space – whether that’s in a road or elsewhere.

“People gain power against governments and institutions that they feel are unjust or oppressive by coming together in public space and disrupting business as usual,” Vaccaro said. “That is a form of activity that is [allowed]. That is a competing use with other uses for the roadway.”

Of course, rights are only as secure as our democracy and our institutions.