The essence of the Portland situation is this: Citizens are free to assemble peaceably and to protest. Those are not grudging tolerances of the all powerful leader, they are civic duties of a free people./1
It is certainly foreseeable that such assemblies can lead to violence or lawbreaking. But that comes in two kinds. 1. Small pockets at the edge of a peaceful rally. 2. Tumultuous disorder that leads to widespread violence and destruction./2
Constitutionally, 1. is not 2. and cannot be converted to 2. by administrative whim or pretext. The state cannot proclaim an assembly unlawful, and ascribe criminality to all present, unless the assembly is factually 2./3
When the state responds to a peaceful assembly with overwhelming threat of or use of force, it is violating a treasured right of Americans--to "peaceably assemble." See Amendment I./4
The use of police or military elements to intimidate protesters who have not broken the law is a grotesque violation of the First Amendment. It is also (seemingly intentionally) a provocation that can lead to the violence it pretends the fear./5
The tweeps (and bots) tweeting isolated images of property damage as a reason why the secret police must supporess Portland's BLM protest are either consciously or unconsciously attacking one of our basic freedoms./6
If in fact a situation is 2. then the state must give warning to those present to disperse. If after fair warning they do not leave, it can arrest them. It cannot simply shoot, gas, beat, taze, or detain them at any moment without warning for merely being present.
