Like book lice chewing on parchment, illiberal impulses from the right and the left threaten to narrow the plain meaning of the First Amendment.
Earlier this month, Protect The 1st reported on U.S. District Judge Mark Walker who issued an injunction on a new Florida law that would have prosecuted peaceful protesters who “participate” in events that turn violent. Judge Walker noted that because “it is unclear what it means to participate, the statute can plausibly be read to criminalize continuing to protest after violence occurs, even if the protestors are not involved in, and do not support the violence.”
Judge Walker imposes on us the burden of separating people by their actions – the right to protest for a redress of grievances from violence. He made it clear that this burden is necessary if we are to remain a society that offers maximum protection for free speech.
A similar issue arose out of Attorney General Merrick Garland’s testimony before the House Judiciary Committee last week.
In this case, Garland was asked about a National School Boards Association letter that portrayed parents who object to teachings and policies in schools as participating in “domestic terrorism,” which could subject these parents to surveillance under the federal Patriot Act. (The NSBA later told its membership that this letter was sent out by two organization officials without approval.) It was on this basis that a Department of Justice memo signed by Merrick Garland initiated a national effort to open lines of “threat reporting” to the FBI.
Rep. Jim Jordan (R-OH) asked if this was a “snitch line” for dissent. Rep. Steve Chabot noted that those who threaten violence “can be dealt with by security, or by local law enforcement.” For his part, the attorney general stoutly maintained that his purpose was to protect teachers, administrators and school board members from threats of violence. The attorney general reaffirmed he vigorously defends First Amendment rights of parents to “vociferously” question controversial issues from mask mandates to critical race theory.
It is unlikely, of course, that any parent would ever be indicted for such speech. If this were to happen, the First Amendment would require a judge to bounce that case immediately. There is a more immediate danger, however, highlighted by Andrew McCarthy of The National Review, one that is the flip side of the Florida law that conflates protest with violence. The investigative process, McCarthy wrote, is “more than enough to suppress dissent.”
The citizen is warned that he is being scrutinized by the federal government in all its comparative might. For exercising his supposed right to protest, the citizen will be harmed in a hundred different ways by the fact of an FBI probe – the anxiety of potential prosecution, the often prohibitive expense of retaining counsel, the loss of business opportunities because of the specter of prosecution, the loss of social ties as friends and associates abandon the citizen lest Leviathan sees them as fellow conspirators.
The judge’s blocking of the Florida law and the outcry over FBI school board speech investigations will likely stop either of these initiatives from doing much damage. What remains disturbing is the failure of some on the right and the left to understand how delicate the actual practice of free speech is, and the wide berth we must give it so dissent and debate can flourish in America.