A group of pro-Palestinian protesters arrested in connection with a downtown Boston demonstration that turned violent this week are now facing felony charges of “inciting a riot.” The charges have prompted concern among local legal advocates and protest organizers.
The 13 protesters were arrested the evening of Tuesday, Oct. 7, the two-year anniversary of the deadly Hamas attack on Israel. Most of the 13 were initially accused of misdemeanors like “disorderly conduct” and “disturbing the peace.” But a spokesperson for Suffolk County District Attorney Kevin Hayden’s office pointed to incendiary flyers circulated ahead of the protest.
“Further investigation revealed violent imagery and rhetoric used in promotional media for the October 7 incident,” said James Borghesani, chief of communications for the district attorney’s office. “This organizing material promoted violence against police and presented an immediate threat to public safety which, combined with the actions of the individuals arrested, provided clear justification for the enhanced charges.”
In one instance, police noted a flyer featured a photo of a burning police car.
The elevated charges come as Boston and other cities run by Democratic mayors face looming threats from the Trump administration to deploy National Guard troops to combat crime and curb protests.
But legal free speech advocates were troubled with news of the new charges, even without knowing all the particulars of each case.
“I am very concerned about it. I think it’s vast overkill,” said Harvey Silvergate, a longtime criminal defense and civil liberties attorney who founded the free-speech organization FIRE, the Foundation for Individual Rights and Expression.
Silvergate insisted that even violent rhetoric, including a photograph of a burning police car — so long as it doesn’t call for immediate violence — are constitutionally protected forms of speech.
Zach Greenberg, faculty legal defense at FIRE, agreed.
“Passing out flyers, even flyers that discuss or describe criminal activity, that’s protected under the First Amendment,” he said. “We have the right to advocate for and even justify violence under the First Amendment. It only crosses the line when it becomes a true threat, a serious intent to commit unlawful violence, and usually flyers and posters don’t suffice there.”
Asked about the looming threat of federal military intervention, Silvergate lamented the state of U.S. politics.
“It is a great national tragedy that a city like Boston has to overreact in a demonstration in order to deter the federal government from engaging in unconstitutional interference in that state,” he said. “My advice is to not play the same game the federal government is playing.”
A source familiar with the Suffolk County DA’s office operations denied the charges were related to concerns about the Trump administration.
Others, like Jessie Rossman, legal director at the ACLU of Massachusetts, declined to comment on the political context and was alarmed from a purely legal perspective.
“We don’t know at the ACLU all of the underlying facts of the specific cases here, but what I do know is that the Constitution and the First Amendment only allows the government to criminalize speech in very limited circumstances,” said Rossman in a statement referring to the “inciting a riot” charge.
“As recently as 2021, the Massachusetts Supreme Judicial Court emphasized that this particular law, the one that has been at issue in these cases, is a relic of the Red Scare and can only be applied where speech meets the threshold for a true threat or incitement, which is a very high bar,” she said. “Any attempt to apply this law beyond this exceedingly limited scope would be unconstitutional and a cause for great concern.”
Still others, like longtime labor organizer and activist Khalida Smalls noted that when organizing a protest, emphasizing nonviolence helps to train a focus on whatever message a group is hoping to convey.
“In my experience, we would not use inflammatory images or information to gather people,” Smalls said when asked about the burning car image. “I would question it, and I would wonder was that actually something from the organizers of this action? Was that actually their intention? Because I would not do that.”
Weighing potential impacts for future protesters, Smalls said she sees the potential for aggressive response as a default reaction by local law enforcement.
“Because there’s this assumption that they need to defend themselves instead of actually supporting what folks are doing as we exercise our First Amendment rights,” Smalls said.
“So, I think doing things out of step or doing things that promote violence and not non-violence in any way ultimately has the potential to put other folks in harm’s way,” she said.
