Skirmish Lines Are Legal

By Dee Wampler

In Fort Worth, Texas (2012) police were protecting a gay pride parade and a protester disobeyed a police officer’s order to not cross a “skirmish line.”  The culprit was charged with interference with public duties under Texas law.  The defendant claimed it was a violation of his First Amendment right to peaceably assemble and protest. The court considered whether this was a “prior restraint” of freedom of speech and whether the apprehension of a disturbance was enough to overcome the right to freedom of expression.  Courts are protective and careful to make clear that First Amendment activity may not be barred.[1]

One of the protesters continued to berate a parade member stating they were lesbians, that they needed to put earrings and a bow in their hair, and called parade members “fags.”  Police told the protesters to step back and keep a two to three foot distance.

Fort Worth police had a “Zero Tolerance Unit” as a tactical response to control crowds, maintain peace, and handle any physical altercations that might occur to prevent a breach of the peace.  They argue they had the right to “maintain a space.”

The skirmish line was held to be legal, and not an unconstitutional infringement upon a citizen’s right of free speech.  The space must be judged against strict standards established for restrictions on speech and traditional public forum.[2]     Police communicate the temporary nature of the skirmish line to the participants.  The Prosecutor must prove that the public safety was at risk.

Police must be aware of the freedom of speech rights yet wish to keep a breach of the peace from occurring to ensure the safety of all concerned.  You may not prevent anyone from merely expressing Christian views or any type of religious views.

A skirmish line must be narrowly tailored to serve a significant government interest. Public streets and sidewalks are traditional public forums and picketing and marching, if peaceful and orderly, are entitled to full First Amendment protections.  Any limitations must be narrowly tailored to serve a significant government interest and must leave open ample alternative channels for communication of the information.[3]

In Missouri, there are a number of state laws which allow officers to keep the peace:

  • It is unlawful to hinder prosecution or to prevent or obstruct anyone from performing an act that might aid in the apprehension of a person (RSMo 575.030(4)) or to interfere with “legal process,” (RSMo 575.160.1).
  • Unlawful assembly occurs if six or more persons assemble to violate any criminal law (RSMo 574.040) or riot (RSMo 574.450).
  • Unlawful refusal to disperse is being present at the scene of an unlawful assembly or at the scene of a riot and failing or refuses to obey the lawful command of a law enforcement officer.
  • Promoting civil disorder is any public disturbance involving acts of violence or assemblages of three (3) or more persons which causes them immediate danger or results in damage or injury to property or a person, (RSMo 574.070(1)). And the use of an explosive or incendiary device is forbidden.
  • It is unlawful to make a terroristic threat for the purpose of frightening or disturbing ten (10) or more people or causing the evacuation or closure of any building or place of assembly or with disregard of the risk of causing the evacuation or closure, (RSMo 574.115.1).
  • The Missouri State Highway Patrol may stop any vehicle and require a person to “obey any other reasonable signal or direction” of the patrol, RSMo 43.17…. all law enforcement officers have the right of arrest, on probable cause and without a formal warrant (RSMo 544.170) and have the right of “fresh pursuit” for a crime committed in the officer’s presence or on any felony (RSMo 544.157.3).

Thus, a skirmish line is a lawful exercise of police authority in Missouri, not withstand the rights of citizens to otherwise peaceably assemble.

[1] Faust v. Texas, (TX App) December 2015.

[2] Frisby v. Schultz,  487 US 474 (1988); Perry Education Association v. Perry Local Educators,  460 US 37 (1983).

[3] Ward v. Rock Against Racism, 491 US 781 (1989).