UN Examines First Amendment Freedoms

July 28, 2016       Mark Hrywna      

Amid recent protests reacting to police shootings and demonstrations at major political party conventions, a human rights expert with the United Nations examined how the freedom of assembly and association is holding up in the United States.

United Nations Special Rapporteur Maina Kiai of Kenya presented preliminary findings during a press conference on Wednesday at the United Nations Information Center in Washington, D.C. His full statement can be found here. A comprehensive report will be submitted to the U.N.’s Human Rights Council in June.

The report will also touch on civil society as it is in the United States. Additional topics that might be included are fundraising, elections, free speech of the charitable sector and the impact of regulations versus enforcement of laws on the books.

“America seems to be at a moment where it is struggling to live up to its ideals on a number of important issues, the most critical being racial, social and economic inequality, which are often intertwined,” he said. It’s not possible, however, to discuss these rights without racism being part of the discussion. “Racism and the exclusion, persecution and marginalization that come with it, affect the enabling environment for the exercise of association and assembly rights,” Kiai said.

Kiai’s official visit to the United States began July 11 and spanned 10 cities: Washington, D.C.; New York, N.Y.; Baltimore. Md.; Ferguson, Mo.; Cleveland, Ohio; Phoenix, Ariz.; New Orleans, La.; Baton Rouge, La.; Jackson, Miss., and Philadelphia, Pa. Paul Clolery, editor-in-chief of The NonProfit Times, was interviewed by Kiai as part of his inquiries.

The purpose of his mission was to make an “in-depth assessment on the extent to which the rights to freedom of peaceful assembly and of association are enjoyed in the U.S.” During his visit, Kiai met with hundreds of activists and individuals representing a wide range of perspectives and observed protests at both national political party conventions.

Racial inequality is just part of the equation. Stagnant wages and productivity can exacerbate economic inequality, Kiai said. “People have good reason to be angry and frustrated at the moment. And it is at times like these when robust promotion of assembly and association rights are needed most,” he said.

Two years after violence and protests in Ferguson, Mo., and last year’s crisis in Baltimore, Md., and just this month in Baton Rouge, police responded in similar ways. Kiai found that black protesters face harsher encounters with police, ranging from more intimidation and disrespect to being detained longer after arrests or faced with more and more serious charges. “The blunt discrimination provides fodder for deeper resentment and frustration,” he said, widening the gap between officers and the community. “It is manifestly unwise to respond to a largely peaceful, grieving crowd with riot gear, random arrests, flimsy charges, rough physical handling, verbal insults and so forth.”

Not only is it a violation of peaceful assembly but it’s also dangerous to police and the public, Kiai argued. On the other hand, he praised Washington, D.C., Metropolitan Police as well as authorities in Jackson, Miss., and New Orleans for appropriately de-escalating situations and monitoring protestors. Fundamentally, the relationship is between police and the community, he said, adding that when there is community-based policing, like in Jackson, Miss., there is much less tension.

The system, however, makes it difficult for people to protest, particularly things like the so-called “War on drugs.” People with convictions for small crimes, or even just arrests, can have difficulty getting work or housing, and eventually leads to hampering their right to associate and assembly, Kiai said. “Exercising a human right should not result in domino effect on a person’s life,” he said.

Some cities require permits for protests, contrary to international law and standards, and in some locations, the requirement is not strictly enforced, opening the process to arbitrariness. “When a right is subjected to a permit or authorization requirement, it becomes a privilege rather than a right,” he said, and may not turn into “de facto” authorizations. Kiai recommended that the U.S. move to a notification system but end the practice of charging fees for protesting permits.

He also was concerned about open-carry protestors increasing tension and discontent. “The idea that some people in protests or bystanders, counter-protest may have concealed weapons is very scary,” he said.

The outcry for accountability for police shootings is deafening, Kiai said. He was struck by the “vast and largely unchecked discretion” that authorities enjoy to arrest, to formulate charges, to prosecute, to invite or deflect external scrutiny and support from the Department of Justice, and to organize internal complaints handling. “This leads to an inconsistent picture of policing throughout the nation. Different authorities within a jurisdiction or in neighboring jurisdictions do not share a common view or policy about policing; a lot ends up depending upon personalities,” he said.

It’s difficult to get accurate statistics from government about the number of people shot by police in this country, said Kiai. The most accurate data now is that tracked by The Guardian, a U.K. newspaper, and The Washington Post. “It’s incomprehensible that nation this large doesn’t have that data,” he said, adding that it gives a sense of impunity to police departments.

One of the most effective ways to reduce discrimination in law enforcement, Kiai said, has been the Department of Justice’s Civil Rights Division, which provides oversight and recommendations for improvement by police, with consent decrees in several cities. He recommended that be “beefed up” and increased to cover as many of the more than 18,000 local law enforcement jurisdictions as possible.