On January 21, 2017, DC’s national mall reverberated with chants of “this is what democracy looks like!” as over half a million women, men, and children took to the streets to participate in the Women’s March in the District of Columbia. The protesters marched down the national mall to the White House to send a message of solidarity during Donald Trump’s first day in the presidential office. This DC march was the largest to occur on the national mall since the 1960’s and 1970’s anti-Vietnam War protests.

DC Was Not Alone

DC was far from the only city to participate in the Women’s March. Over two million people marched across 673 cities around the world. The protesters expressed concern regarding a number of issues that included: racial justice, reproductive rights, LGBTQIA rights, workers’ rights, civil rights, disability rights, immigration rights, environmental justice, and an end to violence. The Women’s March was a shining example of the proper exercise of our First Amendment rights of peaceful assembly and freedom of speech. There were no reported arrests made in Washington, DC, Chicago, Los Angeles, New York City, or Seattle during the Women’s March.

Perhaps a reason for the lack of arrests is that women are no strangers to having to pick up signs and take to the streets to have their voices heard. Women have been marching for their rights for over a century. On January 19, 1913, thousands of brave women marched for women’s suffrage outside of the White House the day before President Woodrow Wilson’s inauguration. While it took seven years, their voices were finally heard with the ratification of the Nineteenth Amendment granting women the right to vote in 1920.

Rallied in the Face of Adversity

However, the right to vote was not the end of the battle. In 1972, women took to the streets again to march for the Equal Rights Amendment after Congress passed it as they awaited thirty-eight states to ratify. On Mother’s Day in 1980, a then record-breaking 90,000 women marched in Chicago to pressure Illinois to ratify the Equal Rights Amendment. The ratification ultimately fell short by three states, but women continued to be resilient.

In the mid-1970s, a movement swept through college campuses in reaction to violent crimes against women which has since become known as “Take Back the Night.” One of the first “Take Back the Night” protests was held in October 1975 in Philadelphia after a microbiologist was stabbed to death while walking home alone. The Take Back the Night Foundation continues to hold marches and events to the present day. The movement gives victims of violent crimes an opportunity to be heard then allows their peers to stand with them in support.

In 2004, over seven hundred thousand women participated in the “March for Women’s Lives” on DC’s national mall. The protest was in reaction to anti-abortion policies from President George W. Bush’s administration and an effort to prevent his re-election. Although President Bush was reelected, these courageous women set the tone for empowering movements to come.

Banding Together When it Matters

Women and their allies standing together in times of discomfort and fear truly embodies the importance of equality for all women. The greatest hope is that someday women will no longer have to pick up signs in order to remind people that women’s rights truly are human rights.

The Guardian has reported that at least six journalists were arrested in the District of Columbia while covering the protests following Donald Trump’s inauguration on January 20, 2017. The journalists arrested include a journalist from Vocativ, a journalist from RT America, a documentary producer, a freelance reporter, a live-streamer, and a photojournalist. Some of the journalists were arrested despite the fact they told the police that they were covering the protests and showed the police their media credentials.

The journalists were arrested along with two hundred others in the hours surrounding Trump’s swearing-in ceremony on the National Mall. USNews reports that the police were beating protesters, reporters, and legal observers with batons and smothering them with pepper spray. Some legal observers, who were clearly identifiable by green hats, were also arrested in the mass arrest.

The D.C. police reported that six officers received minor injuries, and that the crowd was observed breaking windows, lighting fires, burning a limousine, and vandalizing police vehicles. However, the majority of those arrested had nothing to do with the vandalism or injuries that occurred during the protest.

Felony Riot Act

All those arrested have been charged with the felony Riot Act (D.C. Code § 22-1322), which is the highest level offense under the District of Columbia’s public disturbances law. If convicted, they can face ten years imprisonment and/or a fine of up to twenty-five thousand dollars.

In order for an individual to be convicted under the felony Riot Act, the government has to prove beyond a reasonable doubt that:

1. There was a public disturbance that involved an angry or aroused crowd;
2. The conduct of the crowd created an actual, serious, and imminent or immediate danger of either: injury to persons or damage to property;
3. The conduct creating this danger caused public fear or alarm;
4. The conduct creating this danger either: (a) was accompanied by the use of force or violence against persons of property; or (b) had the clear and apparent danger to cause the use of force or violence to persons or property to erupt;
5. A group of five or more people, including the individual, participated in the public disturbance voluntarily and on purpose and not by mistake or accident; and
6. In the course and as a result of a riot either: (a) a person suffered serious bodily harm; (b) or there was property damage in excess of $5,000.

See 1-VI Criminal Jury Instructions for DC Instruction 6.610 (2016). Case law defines a “public disturbance” as “tumultuous and violent conduct” that creates a “grave danger of damage or injury.” U.S. v. Matthews, 419 F.2d 1177 (D.C. Cir. 1969). The law requires that the “public disturbance” be something more than mere noisemaking or minor breaches of the peace. The individual is considered to be participating in the “group” if the disturbance was occurring in his or her general vicinity.

There is not enough information yet to determine if there is sufficient evidence for the government to prove beyond a reasonable doubt that those arrested were guilty of the elements required by the felony Riot Act.

An Affront to Democracy

While it is shocking that over two hundred people were charged with the felony Riot Act as a result of the January 20 protest, it is devastating that any in those numbers were journalists.

The National Lawyers’ Guild’s D.C. branch issued a statement accusing the Metropolitan Police Department of having “indiscriminately targeted people for arrest en masse based on location alone.” The Guild further addressed the violation of the journalist’s constitutional rights, stating: “These illegal acts are clearly designed to chill the speech of protesters engaging in First Amendment Activity.” Politico reports that a class action law suit is already being filed against the D.C. police for the violation of the protesters’ and observers’ constitutional rights.

Freedom of the press and freedom of assembly are values that are fundamental to America’s democracy. While the police have the right to arrest those who commit acts of vandalism, the arrest of the bystanders — and particularly members of the press — is a violation of these individuals’ most valued constitutional rights. Both the police officer’s actions of arresting the individuals and the prosecutor’s actions of charging them with such a serious offense is an affront to our democracy and our freedom.