By KIA RAHNAMA
JAN 13, 20209:00 AM
Members of the U.S. Park Police near the Lincoln Memorial on July 4.
Sarah Silbiger/Getty Images
In 1972, the Jacksonville, Florida, police found themselves before the U.S. Supreme Court. The department had recently amped up enforcement of a Florida statute that outlawed a slew of public activities, from loitering to nightwalking, “common drunkedness,” to beggary, and the egregious act of “wandering or strolling around from place to place without any lawful purpose.” It granted police officers the power to approach anyone on the street who they believed was violating the law. In many instances, the law had been enforced not to preserve peace and order on the streets but to suppress public displays of lifestyles that the state rejected, like in the case of Margaret Papachristou and Betty Calloway, two white women arrested on the charge of “prowling by auto” as they hung out with two black companions.
It was easy for a unanimous court to see that the law was unconstitutional; why it was unconstitutional, and what exact right the law violated, was harder for the justices to glean. Justice William Douglas, writing on behalf of the court, ultimately referenced a right that today is not readily known to most Americans: the right to free movement.
He wrote that the right to be free in the streets was “historically part of the amenities of life” in America. Although Douglas had the correct intuition about the right at stake, his inability to fully articulate its nature or to trace its exact origins, was a dead giveaway: The fundamental right to free movement was already disappearing from the American psyche and very soon after that decision would disappear from the court’s vocabulary altogether.
Severing the right to free movement from legal discourse laid the groundwork for many of the government transgressions we witness today: a Mexican teenage boy shot by American patrol agents while roaming on Mexican soil, continuous harassment of the homeless in public spaces, and the discriminatory imposition of traffic stops to drive up government revenue, to name a few. The right to free movement now feels like a phantom limb; its deprivation is felt, but it has long been robbed of its utility in correcting course.
For most of Western history, the right to free movement would have been well understood by the public to be a fundamental precept of individual liberty. Its roots stretch back to old English law and the 1215 Magna Carta. America’s founders first articulated the right in the Articles of Confederation by guaranteeing to Americans the right to freely travel throughout the U.S. While not directly specified in the Constitution, it has long been understood that Article 4 Section 2, which makes a general reference to the inviolability of all “privileges and immunities” of the citizens, indirectly preserved the right.
The right to freedom of movement, in its expansive definitional breadth, was meant to protect against a variety of encumbrances. It might have been originally conceived as the right to roam around common lands, the forests in England, or the American frontier, but soon, it grew to encompass the right to walk the streets in urban cities, free from government intrusion. With the advent of long-distance travel, it informed the right to freedom of navigation on the seas, and after that, the right to travel first through domestic travel then to international flight.
When automobiles first took over American streets, many borrowed from that tradition to speak of “the right of locomotion.” Courts responding to the first attempts at regulating it would stress that Americans are “entitled to use the public highways” and have a right to “free passage without interruption.” The police, therefore, could not use mere suspicion of criminal activity to interrupt daily commutes. When laws gave police officers the power to interfere with an individual’s right to stand or walk on public sidewalks, the courts routinely struck them down, holding that the “right to freedom of movement” cannot be left to “the whim of any police officer.” The Arizona Supreme Court boldly stood up for the right’s broad scope, writing: “The thought that an American can be compelled to ‘show his papers’ before exercising his right to walk on the streets, drive the highways or board the trains is repugnant to the American institutions and ideals.”
Despite its prominence for centuries, this right began to disappear in the past century. The Supreme Court, beginning in the 1980s, developed a far more expansive conception of private property, holding in a series of cases that the right to exclude others from private land was “essential” to the concept of private property. In addition, in 1968, the court opened the door to far greater intrusions on freedom of movement by police officers, when in the case of Terry v. Ohio, it held that police officers could interfere with citizens’ right to be on the streets, by stopping, questioning, or frisking them, so long as they had reasonable suspicion that criminal activity might be afoot. In doing so, the court succumbed to the tunnel vision fear of urban crime that dominated American politics at the time. It elevated the government’s interest in proactive crime prevention to the same level as a fundamental right whose lineage far surpassed the rise of any organized police force in any Western society. This was a cataclysmic shift—only 10 years before, the court had confidentially asserted that “[u]nder our system, suspicion is not enough for an officer to lay hands on a citizen” in a public space.
Contributing to the demise of the right to free movement was the court’s eventual surrender to bombastic arguments about the fragility of security in public spaces in the age of new technologies. Leaving behind carriages, coaches, and buggies for automobiles, buses, and motorcycles came at a price for the freewheeling commuter. The police force in America first experimented with interrupting traffic to conduct warrantless search of automobiles during the prohibition era. To justify this infringement on the right to free movement, police argued that automobiles, due to their speed, gave criminals a much higher chance to escape with evidence of crime. The state argued that this change in technology demanded that police be given more power in interrupting daily traffic. The Supreme Court ultimately acceded, even though many state judges had astutely observed that whatever advantage automobiles provided lawbreakers was matched by the same advantage to police pursuits. Beginning in the 1930s, the court began to treat driving as a special kind of movement, subject to a set of government restrictions not traditionally applied to pedestrian traffic.
The moment at which the citizen moved in public would become the moment of government ambush and control.
Simultaneously, the slow disappearance of the right to free movement coincided with a period during which civil rights advocates successfully convinced the court to recognize the right to privacy in cases involving sexual conduct, marriage, and family orientation. Because of this success, advocates were tempted to frame interactions with law enforcement in public spaces as violations of the right to privacy, as opposed to infringements on the right to free movement. Resorting to the right to privacy in police-citizen interaction cases proved to be far less successful than the cases involving intimacy of the home. The government welcomed this development: The right to freedom of movement would logically begin by leaving the house, while the right to privacy, on the other hand, was forfeited at the moment of moving into public space
As the courts relieved themselves of the duty to protect the right to free movement, the loosened restrictions shaped increasingly draconian government policies that soon enveloped every aspect of daily life outside the home. Not long after Terry, the court used that decision to expand the custom and immigration officers’ power to similarly interfere with the freedom of movement at and around the border. Immigration enforcement at the border entered a new age, with heavy investment in border patrol vehicles that routinely interrupted daily traffic to identify and arrest “commuter migrants.”
The right to free movement’s demise also bolstered many states’ ability to regulate sexual conduct. As the court expanded the right to privacy and forbade the states from reaching into private dwellings, the states took the fight over sexual activity to the streets. Most state laws passed in the ’80s and the ’90s that attempted to control sexual preferences did so by criminalizing its public displays. What followed was a wave of discriminatory arrests and harassment aimed at LGBTQ citizens under the guise of public lewdness, solicitations, and public morality laws.
Most importantly, erasing the right to free movement was the steppingstone for every central element of hysteric anti-crime measures in the ’90s, chief among them the juvenile curfew laws. By 2009, in 84 percent of cities with populations greater than 180,000, police officers now had cause to arrest youth for merely wandering the streets at nights. This was proceeded by the movement to enact strong anti-homelessness laws, which denied the indigent the right to occupy public spaces without hinderance. Both policies put already-disadvantaged citizens at a further risk of interacting violently with the police and decades after their adoption continue to have a negative impact on conditions in inner cities.
With every new government policy trampling on the right to free movement, the court was at best forgetful about what it had said about Americans’ right to be left alone in public, and at worst complicit in disregarding it. With the courts’ consent, the moment at which the citizen moved in public would become the moment of government ambush and control.
Some current legal challenges seek to reexamine the false premises of government control in public space, and by doing so serve the purpose of reinvigorating the right to free movement. From lawsuits aimed at government control of roads, to the push-back against anti-homelessness laws, and attempts to curtail juvenile curfew laws, the desire for reform is underlined by the public’s urge to regain a lost privilege.
Douglas’ last-ditch attempt at resurrecting the right to free movement was informed by his fear of the consequences that its disregard might generate. When a law provides for the arrest of anyone in public who might simply appear suspicious in the eyes of police officers, the only victims will be those who are most likely to receive their gaze: “the poor and unpopular.” The project of restoring their sense of dignity today is incomplete without reclaiming their right to free movement.