In “86 47” The Real Threat Is to The First Amendment

Where the government saw implied violence, the court saw protected speech

U.S. President Donald Trump

​As David Badash writes in AlterNet, protesters have been displaying an “86 47” flag in front of the U.S. District Court in Washington, D.C. Interpreting the flag’s language as a “threat against the President,” the Interior Department had asked the National Park Service to revoke the group’s permit.

Yet even Merriam-Webster refuses to ascribe violent meanings to the term “86” – which began among soda jerks as slang for refusing to serve an unruly customer. So does federal Judge Randolph Moss, who issued a two-week restraining order against the Park Service, saying Accountability Now USA’s rhetoric did not imply violence.

The red, white, and blue flag “contains no knives, skulls, nooses, or other threatening symbols” the judge noted, and was surrounded by “four signs that read ‘IMPEACH. CONVICT. REMOVE.’” Protesters had told the court that their intentions were peaceful and political, namely to engage passersby and advocate for impeachment – which is protected political expression, both permitted and permit-able. A flag, in other words, is not a rifle scope. Badash quotes the court’s opinion at length:

“The Court does not doubt that political violence is on the rise and that it poses a grave threat not just to the targets of the threats but to the country as a whole. But the enormity of that problem does not change the meaning of Plaintiff’s speech, which by any reasonable measure merely advocated for the President’s impeachment and removal from office.”

According to the ruling, a Secret Service officer interviewed one of the protesters, asking her about having “no ill-will towards” the president. She replied, “I want Trump to live forever” and for him to “rot in jail.” The officer left and even assured the protester he wanted “to make sure that [her] First Amendment rights are protected.”

Which may be why Judge Moss wrote in closing: “The Court can only guess as to why the agency decided to censor Plaintiff’s speech.” He also referred to the Park Service as “the agency that directed Plaintiff to remove (that is, to 86) the flag.”
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Since the beginnings of our democracy, political speech has often been rough and rude. Whether the message is “Let’s Go Brandon,” or “86 47,” when government officials start treating political slogans as criminal threats based on speculation rather than evidence, the danger is not merely to one protest group – it is to the First Amendment rights of everyone who engages in the rough and tumble of political speech.

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