You’re not protected by the First Amendment.
But you should be.
The protests that have been occurring over George Floyd have given people pause over whether to speak out or not; they seem generally confused about what they have a right to do and what they are rightfully being arrested for. The truth is that the police do have overly broad power, even if it is brought before judicial oversight. You should be worried, but that shouldn’t stop you from saying what you want to say. A police state never disintegrated because its’ citizens played within their rules. And black citizens need this to disintegrate, because its killing them.
The insidious nature in which fascism propagates itself throughout a society begins on the most basic level of how we define the rights that are supposably god-given in a democracy. If we are to say the freedom of speech only means free speech when no one gets upset at the government about it, how free is our speech, truly? Naturally the most basic rights we have to guard against fascism in the United States are our universal suffrage (based, of course, on reliable election results representing actual outcomes) and the right to freedom of speech, which includes the right to protest those laws and actions we see as unjust. This right is written directly into the First Amendment to the constitution.
“Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
This amendment fails to account for speech which speaks of revolution, or even revolutionary concepts. This almost certainly would include speech which rejects of the whole of the current police force as being one that is intrinsically and institutionally racist. Because in spite of the broad freedoms seemingly ensured by the First Amendment, there are some deeply ingrained exceptions that have allowed for undemocratic results.
If any of the people harmed during protests were to take their cases to court, it would likely fail on the following grounds, mostly due to the fact that violence has occurred, likely against personal property, at a point in time, by people ostensibly sharing the same views. That being said, they would probably find a reason to suppress the speech whether or not people looted and broke windows.
Time, Place, and Manner
The government may generally restrict the time, place, or manner of speech, if the restrictions are “content neurtral” and the court deems them “narrowly tailored” and promoting a “substantial government interest”. Police Department of Chicago v. Mosley (1972).
This “time and place” exception has been used by the conservative Supreme Court to carve out more flexibility on the part of the government and impinge on Americans’ First Amendment right. Ideally, to survive First Amendment constitutional challenges, any such restrictions based on “time and place” must satisfy a three-prong test outlined by the Supreme Court in Ward v. Rock Against Racism (1989).
- the regulation must be content-neutral
- the regulation must be narrowly tailored
- the regulation must serve a substantial government interest
Justice Scalia in his majority opinion upheld a Chicago ordinance requiring individuals holding events in a public park involving more than 50 persons to obtain a permit. Thomas v. Chicago Park District, 534 U.S.316 (2002). This case revolved around a series of permits that were applied forwhich the goverment could only approve a portion. Scalia, in his opinion, acknowledged it were possible to apply neutral time, place, and manner restrictions arbitrarily in order to suppress a certain viewpoint but he dismissed such a thought, believing the city to have provided adequate guidelines to prevent such abuses. He claimed any instances in which this were the case would be addressed on an as-applied basis. This means that if it happens to you, you would have to sue and if even if you win, your rights would have already been trampled on. It’s either that or show up, get arrested and hope they overturn your conviction.
The second prong of Ward’s three-prong test requires that the regulation must be narrowly tailored to serve a substantial governmental interest. This requirement is not nearly as strict as it sounds, in fact, in Ward, the court explains that this prong is satisfied merely if “the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Basically, the government has significant leeway in that they do not have to prove their restriction is the most narrowly tailored, as long as it benefits their motive. Thus, for instance, if the government says your protest is blocking traffic, it can be restricted and your protest can be disbanded.
“Fighting Words”
No doubt when it comes to recent protests, the government would insist that it had a substantial interest in “keeping the peace”. This would justify their ability to enforce curfews that disabled anyone who works from protesting. In fact, this is how the government can systemically stop protests from happening in the first place. But they are also capable of ending them once they hear the content, on the basis of that content, if they contain the ever-vacuous term of “fighting words”.
Fighting words are words which “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v New Hampshire, (1942). This type of speech is unprotected and therefore they are able to stop it at any point. While this exception has been more narrowly tailored to allow for flag-burning, in Street v. New York (1969), and a jacket stating “fuck the draft”, in Cohen v. California (1971), the exception is based on the Chaplinsky case, in which a Jehovah’s Witness was arrested for purportedly told a New Hampshire town marshal who was attempting to prevent him from preaching that he was “a damned racketeer” and “a damned fascist”. Imagine the court upholding rules it gathered while telling a man he cannot call an elected official a fascist because he’s on a public sidewalk and not yelling it from his house.
It should be noted the courts more protective decisions over the First Amendment occurred during the years of the Warren Court, when Chief Justice Warren presided over a fairly liberal court and many gains in civil liberties were made. Warren wrote the opinion which was eventually accepted by the entire court in Brown v. the Board of Education (1954). This was the exception, not the norm, as subsequent courts have continually expanded the governments’ ability to restrict speech.
We can look to the Roberts court for such decisions as Citizens United v. Federal Election Commission, (2010) which essentially extends first amendment rights to the ultra-wealthy while knowingly doing so would affect regular peoples’ first amendment rights. It’s all in the name of private property, as our constitution was fundamentally founded to protect it.
The Espionage Act
If the court ever deems the current speech as “hate speech” against police, the court would surely rule on the side of the government, and its already apparent that narrative is forming. If anyone speaks of any real revolution, they will absolutely be suppressed, because the court has never protected revolutionary speech. Now that they called in the DEA to enforce legal measures in pretty much its capacity to indict whomever they want, it is important to remember that basically any speech critical of the federal government in particular is subject to a set of laws used initially to imprison communists for being communists: the Espionage Act of 1917. As recently as the Obama administration, he used this act to imprison a record number of reporters’ sources.
The Bush administration took poor legal advice from John Yoo, yet that became our norm. Our current president has shown he not only has no knowledge of what is supposed to constitute the first amendment right but outright suggests things that are so clearly out of line with a free, democratic society, and this has simply become the norm. For instance, he has suggested outright banning news sources which are critical of him.
And 88 thousand people liked it. The thing is that the court is not supposed to be influenced by the majority opinion, in fact, many scholars contend that the judiciary exists to do just the opposite: protect minorities.
A black and hispanic CNN reporter was arrested in Minnesota, and although he was released, this shows how arrests can play a powerful role in restricting speech because whatever he was there to film or record is now lost. Police have shot several people during these protests; a man in Louisville died and the police “weren’t wearing their body cameras”. This case is being investigated, but how likely is an arrest or a conviction when those things are unlikely even when they are wearing body cams? Can we really rely on the judiciary to right these wrongs when it can deny certiorari to anyone at its discretion? It could either never hear a case surrounding the rights of people during the George Floyd protests or simply rule against them but either way the result would likely be the same: lower courts would rule sporadically, likely in favor of police, and our highest judiciary would allow it to stand, because, First Amendment Exceptions.
Now, the DEA has been given broad discretion to surveil anyone attending the protests. This information will inevitably be used against you, as finding a crime to say you’ve broken is as easy as saying you’re out past curfew, or you were violating a time, place and manner law. They are attacking you on the basis of your speech, make no doubt.
The power to become a police state or not hangs in the balance. Right now our fundamental rights are deemed fluid by a court subject to partisan demands, and we can never be sure they will be protected. Speaking up right now might not be the smartest thing, but its the right thing.
Maybe, but, you didn’t hear it from me.
