While there were many moments during the president’s first official trip abroad that were disconcerting to First Amendment advocates — including the failure to hold open press conferences — perhaps none was more chilling than the comments made by Secretary of Commerce Wilbur Ross as he took note of the lack of protesters during the visit to the Kingdom of Saudi Arabia: “Not one guy with a bad placard,” he said, approvingly, seemingly interpreting this as a sign of President Donald Trump’s popularity.
When the CNBC interviewer Becky Quist pointed out that this perhaps was because Saudi Arabia officials “control people and don't allow them to come and express their feelings quite the same as we do here,” Ross stuck to his view. “In theory, that could be true,” he said, “but boy there was certainly no sign of it. There was not a single effort at any incursion. There wasn't anything. The mood was a genuinely good mood.”
The “good mood” for the American officials is achieved by repression of expression by Saudi people. As Human Rights Watch reports, the Saudi regime routinely sentences dissidents to long prison sentences for crimes resulting from publishing criticism of the government, giving interviews, and even writing political poetry. Such convictions continue, despite Ross’s claim in the same interview that Saudi Arabia is “liberalizing.”
Saudi Arabia’s practices are consistent with its constitution, which specifically allows the prohibition of speech that fosters “sedition or division,” as well as speech that harms “the state’s security and its public relations” — or that “detracts from man’s dignity.”
This is obviously quite distinct from the United States’ constitutional guarantee of free expression in the First Amendment, which prohibits laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” Yet President Trump — with his open disdain for the “fake media,” his calls to make it easier to sue for libel, and his suggestions that street protests exist only because liberals pay protesters — appears in some ways more comfortable with the Saudi approach. And it’s not just a question of the president’s attitude: There are disturbing signs of a nationwide attempt to crack down on dissent.
A spate of incidents, including the prosecution of a protester at the confirmation hearings of Attorney General Jeff Sessions and get-tough proposals and laws at state and local levels, are testing the nation’s commitment to the First Amendment.
To be clear, this is not a new problem. In the earliest days of the United States, Congress — many members of which had participated first-hand in the adoption of the Bill of Rights, including the First Amendment — criminalized, through the Sedition Act, “any false, scandalous and malicious writing or writings against the government of the United States.” The act’s target was not only popular unrest, but also criticism of the newly elected Federalist party by members of the opposition party, the Jefferson-led Republicans.
Notably, the Sedition Act was passed on the eve of possible war with France. One common view of our constitutional right to disagree with government is that the right ebbs when there is a national security threat. The great Supreme Court Justice Oliver Wendell Holmes famously pronounced in 1919 that even the most stringent protection of speech should not protect a person “falsely shouting fire in a theatre.” That phrase often serves as a rallying cry for defenders of free speech, for it suggests that the only speech that can be regulated is speech that potentially causes physical harm — a panicked rush for the exits, for example — and that has no political content.
Yet the case for which Holmes wrote that opinion rested upon a conviction of socialists, during World War I, for explicitly political speech: They were distributing anti-draft pamphlets that read: “Assert your rights! ... Do not submit to intimidation,” and compared conscription to involuntary servitude. Holmes noted that “[W]hen a nation is at war many things that can be said in time of peace are such a hindrance to its effort that their utterance may not be endured so long as men fight.”
Does a war without end against terror imply permanent curtailment of speech rights?
It’s been suggested that this “war hypothesis,” as some scholars have called it, may explain the fluctuations in First Amendment protection of dissent. Yet new kinds of war, and new framings of conflict — from the Cold War to long undeclared wars like Vietnam, to the War on Terror — add a new twist to that hypothesis. Since World War II’s end, peace seems to break out only intermittently. If we are always a nation at war — with someone or something — then the government can argue that it always has a heightened need to protect itself from internal as well as external “enemies.”
But importantly, another idea pervades First Amendment doctrine: that of neutrality. On this view, the government has more latitude to combat “disruption” as long as it does so without regard to the viewpoint or content of the speech. The catch, of course, is that disruption is often indicative of dissent.
The United States government prosecuted Desiree Ali-Fairooz — the laughing protester at Jeff Sessions’s confirmation hearing — for “unlawful conduct on Capitol grounds,” including disorderly or disruptive conduct. According to Ali-Fairooz and her lawyers and supporters, she let out a fairly mild involuntary laugh — on the level of a cough — when Sen. Richard Shelby (R-AL) lauded Sessions for his supposed reputation for treating “all Americans equally under the law.” Then she laughed again.
The government somewhat more dramatically described Ali-Fairooz as producing “a loud burst of laughter, followed by a louder burst of laughter.” The police went to remove her, at which point, the government says, she became “disruptive” — and Ali-Fairooz admittedly began to argue about her ejection (and called Sessions’s views “evil”). The jurors who convicted her said that they had concluded she was illegally disruptive not when she laughed but when she began disputing her ejection. That’s highly problematic, from a First Amendment perspective, because without the laughter, the police would not have begun to remove her.
It also troubling that Ali-Fairooz was singled out because she appeared to be a protester. She had entered the room with two men who donned Klan masks and, and who, before the proceedings began, stood up and began facetiously thanking Sessions for his work, and were escorted out by police. A government motion describes Ali-Fairooz, accurately, as “wearing a pink shirt and a pink hat, with the words Code Pink written on it.” She therefore appears to have been identified by police, in advance, as a dissenter by her attire and associations, and then put under scrutiny that other audience members did not face. A laugh by a man in a business suit would likely not have led to a police intervention.
Rules that ban disruption in certain buildings or spaces are justified under the doctrine that the “time, place, and manner” of First Amendment expression can be regulated (assuming that these regulations are reasonable and that there are ample alternative channels of communication). Importantly, the government’s purpose in adopting such restrictions must not stem from disagreement with the message of the expression in question. Yet, again, the line on such restrictions can be difficult to draw.
Government has often enacted laws or policies that specifically protect “its” buildings against dissent. Perhaps most famously, in United States v. Grace (1983), the Supreme Court implicitly upheld certain limits on expression in the Supreme Court building itself, including the banning of signs and even buttons. But the court ruled that such restrictions could not extend to the sidewalks surrounding the building — where Mary Grace, the defendant, had been picketing with a sign bearing the text of the First Amendment.
Interpreting Grace, lower courts have held that the right to free expression does not extend to the Supreme Court building plaza, the semi-public space between the sidewalk and the court’s entrance, often portrayed in images of the Court building. The Court has amended its own regulations regarding protests to exclude from its restrictions “casual use by visitors or tourists” of signs or symbols — that is, those not intended to be part of a protest. Still, the upshot is that quiet, non-disruptive dissent (even buttons) will not be tolerated in the very room in which the judges who protect the First Amendment listen to arguments.
Several states have new laws that raise the legal and financial risks of protesting
Government attempts to curtail demonstrations are by no means limited to particular government buildings. Recently, a new array of state and local level proposals has sought to regulate dissent, seemingly prompted by Black Lives Matter, pro-environmental, and anti-Trump protests.
For example, a large protest by Black Lives Matter activists at Mall of America in Minneapolis, in December, and at the Minneapolis-St. Paul International Airport — which shut down several stores and delayed some flights — has been followed by an attempt in Minnesota to shift economic sanctions onto protestors in a wider swath of situations. A pending bill would allow a state or local government to bring a civil action against people “convicted of participating in an unlawful assembly” in order to recover “public safety response costs.” This would seemingly allow a single person convicted of a crime in a protest of thousands — say, someone who broke a storefront window or who resisted arrest — to be liable for the government costs of managing the entire demonstration.
This law fits into a long tradition of governments attempting to shift the costs of protests onto the protesters themselves — a tactic that the Supreme Court has concluded can raise First Amendment issues. One popular approach has been high permit fees for protests. In 1992, in a case involving a protest by the KKK and other right-wing extremist groups, the Court held that any permit fee scheme must have rigorous and objective standards, to ensure that officials would not be adjusting the fees based on the perceived merits of the protest.
Nevertheless, like the Minnesota bill, several of the new proposed laws focus on restitution for damage that occurs during protests. A bill recently introduced in Washington state would allow courts to order restitution of up to triple the amount of the victim’s loss in cases of criminal offense “in which there has been a special allegation that the person committed the offense to cause an economic disruption.” This targets economic boycotts or actions similar to the famous Montgomery bus boycott led by Dr. Martin Luther King. (A modern-day King and his allies would be liable for three times the loss caused by the boycott.)
In yet another example, the Oklahoma governor has recently signed into law a new statute supposedly intended to protect petroleum pipelines and related facilities from vandalism. Vandalism is already illegal, of course, but the new bill would let officials assess a fine of up to $1 million against any organization “found to be a conspirator” with persons convicted under the statute. First Amendment advocates anticipate that the law could bankrupt nonprofits that organize or participate in protests if a rogue protester engages in vandalism.
The ratcheting-up of laws punishing criminal conduct in the context of protests could spur courts to view those laws with a skeptical eye. A very severe penalty (a felony) for a simple infraction (failure to obey an order to clear a public street) could well be seen as an attempt to discourage protests, not keep the streets clear. In Mississippi, a pending bill would make “a person sitting, standing or lying in a public road or highway that would impede or hinder the passage of emergency vehicles” a felony punishable imprisonment of five years and a fine up to $10,000.00. Note that the bill does not require emergency vehicles to actually be impeded, strengthening the argument that it is overbroad.
Overbreadth also infects a Wisconsin proposal requiring public universities and colleges to develop policies to discipline faculty, administrators, or students who engage in “violent, abusive, indecent, profane, boisterous, obscene, unnecessarily loud, or other disorderly conduct” that interferes with the free expression of others. A demonstration that is not “boisterous” or “disorderly” is difficult to imagine. Thus, in the guise of protecting the free expression of some campus speakers, institutions of higher education would have to police dissent and disagreement.
From banning masks to potentially inspiring vigilantism against protesters
Another strategy that governments take — both historically and in the past few months — is to take aim at the somewhat tenuous First Amendment right to anonymity. Being in public while concealing one’s face or identity is generally not protected expression. In the United States, laws prohibiting wearing masks in public have historically been connected with anti-KKK statutes, given that masks made it easier for members of communities to terrorize black citizens and others without being identified. Courts have upheld criminalizing wearing a KKK hood on public property.
But not all anti-masking laws have their roots in efforts to stop the Klan. In New York, an anti-masking law first passed in 1845 was motivated by farmers who were rioting to protest rents charged by large estate owners — because the farmers dressed as Indians, thereby concealing their identities. That same New York statute has been applied against the Occupy protesters wearing Guy Fawkes masks. More recently, a new statute in North Dakota, arguably prompted by protests over the Dakota Access Pipeline, criminalizes masking, and a new bill in Missouri would introduce an anti-masking law to the criminal code.
On the one hand, there may be justifications for restricting masking, given that masks have historically been tied to terroristic intimidation. And such laws might also be defended on “time, place, and manner” grounds: You can say what you want, but not hide your face while doing so. On the other hand, there are many reasons why one would want — or need — to be anonymous during a demonstration, including the fear of retribution. Notably, supporters of Pussy Riot, jailed in Russia for protests involving masks, received a waiver to the New York law prohibiting masked appearances when they protested outside the Russian Consulate in 2013. Moreover, the masking laws are rife with exceptions (otherwise, Halloween would not be possible).
A different strategy in some recent laws invites vigilantism. A bill introduced in Tennessee would immunize drivers who injure a person who is participating in a protest or demonstration and is blocking traffic in a public right of way. Florida has a similar bill. Although both bills include language stressing that the motorist’s act must not be intentional, the clear message is that drivers inconvenienced by demonstrations should be able to take matters into their own hands. (One can hear echoes of the call, on Twitter, by the blogger, USA Today columnist, and University of Tennessee law professor Glenn Reynolds, during protests in Charlotte, to “run them down.”)
As these strategies for new laws and the enforcement of already existing laws make clear, there is an increased appetite in some parts of government for curtailing oppositional expression. Yet it is also obvious that this appetite is not new. In Whitney v. California (1927), the United States Supreme Court upheld the conviction of socialite and activist Charlotte Anita Whitney under the California Criminal Syndicalism Act. Her crime was arguing for a more fair distribution of wealth and more equality amongst racial groups through organizing, advocating, and picketing.
Justice Louis Brandeis — like Holmes, today considered a free speech champion — concurred in the conviction, albeit reluctantly, and wrote that “only an emergency can justify repression.” The emergency, as he saw it, was socialism. The government chose to quash her dissent by sentencing her to up to 14 years in San Quentin Prison, although she only served a small portion of that sentence and was eventually pardoned. Forty years later the Court overruled Whitney, implicitly finding that the emergency perceived by the government never existed.
Today, some government officials seem to conjure emergencies that justify repressive anti-protest laws, but there is little evidence there is a crisis of unlawfulness. Unlike Saudi Arabia’s, our constitution is designed to preserve and protect dissent, protest, and disagreement — not the “good mood” of those in power.
Ruthann Robson is professor of law and University Distinguished Professor at the City University of New York School of Law. Twitter: @RobsonConLaw
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