When does a protest become a criminal activity?

Just when does a protest activity officially cross the line from protected under the First Amendment to being considered something you can be arrested for?

PORTLAND, Ore. (KOIN) — Government leaders condemned a Portland State University occupation of a library that officials said crossed the line from free speech to criminal activity, bringing waves of arrests by the Portland Police Bureau Thursday when they twice cleared the vandalized building of protesters who were calling for a Gaza ceasefire.

However, the question arises, just when does a protest activity officially cross the line from protected under the First Amendment to being considered something you can be arrested for? And when that line is crossed, how do police handle taking action in such a delicate situation?

To answer these questions, KOIN 6 News reached out to experts.

Thomas Berry, a research fellow at the Cato Institute, explained that when it comes to rules about protests at public universities, they’re required to follow the First Amendment. The Supreme Court has identified three key factors for figuring out whether a rule complies with the First Amendment. 

"Rules have to be viewpoint neutral, they have to further a significant government interest and they also have to be reasonable in context,” Berry said. 

In terms of when exactly the line is crossed from free speech to criminal activity, Berry said it boils down to whether the conduct of the demonstrators in question could be criminalized independently from whether or not a message is being conveyed along with it. 

“So if you can criminalize vandalism, burglary, for reasons entirely separate from speech, then you can still criminalize that even if the purpose of doing that is to send a message,” Berry said. “Just like we've seen, for example, climate protesters throw paint on art in national monuments — if you can criminalize throwing paint on a monument for no expressive reason, you can equally criminalize it even if it's for an expressive reason.” 

With the recent PSU activity, protests began on campus late last week. But on Monday, there was a shift in the tone from officials about the seriousness of activity after people began occupying the Millar Library that evening. Images from inside the library confirmed property destruction had taken place, including graffiti on walls, broken glass and smashed computers within the barricaded building.  

Then early Thursday morning, Portland Police Bureau stepped in, clearing out the building and evicting the protestors onto the street. A strong presence from a crowd of people was felt near PSU’s campus throughout the day as police pushed people back. By 4:30 p.m., they ultimately arrested 22 people, with seven being PSU students. 

However, protesters soon re-entered the library a couple of hours later, only for police to once again clear the building and make seven more arrests, with one other arrest made by PSU Campus Security, PPB announced at around 7:30 p.m. 

What kind of factors do officers have to consider when it comes to something like clearing out an occupied library amid a protest that has been declared a criminal event, given the free speech intricacies at play?

KOIN 6 News asked this very question to Travis Norton, a former police officer and police tactics expert. He told us in part law enforcement have to do things like “determine your command and control.”

“You have to identify and establish your incident objectives and meet with your stakeholders,” Norton said. “Your planning also has to consider what happens when vandalism occurs, physical assaults and other types of emerging issues. They're also going to consider things like rules of engagement — from deployment of less-lethal ammunitions — and what their arrest procedures are going to be."