The Resistance and the First Amendment




Yesterday, artist Robin Bell projected the text of the Emoluments Clause of the Constitution onto President Trump’s International Hotel in D.C., along with the message “Pay Trump bribes here.”  The hotel staff asked Bell to remove the projection, and he did, for the fifth time.  Last week, reporter Dan Heyman was arrested for “willful disruption of government processes.”  Heyman’s attempts to ask Health and Human Services Secretary Tom Price a question about health insurance for victims of domestic violence were categorized as “aggressively breaching” Secret Service agents.  (Heyman was not asking questions of Price at an organized news conference, because Secretary Price was not giving the media access to his trip to the West Virginia state Capitol.)  Before Trump was elected President, people vandalized Trump campaign signs, some committing other crimes in the process.

Although many actions of protest against Trump involve peaceful speech that is protected by the First Amendment, others are clearly unprotected, disruptive conduct.  Light projections onto others’ property are likely not protected speech, although whether they constitute a trespass or a nuisance divides the courts.  Vandalism is a criminal act.  Not only is vandalism not protected speech as against government restriction, but vandalism against campaign signs is used to forcefully negate the protected, political speech of private individuals.  Interfering with the duties of Secret Service agents, even in the name of journalism, is not protected activity, although Heyman’s actual interference here is questionable.  The President should give reporters extra leeway, if not in the name of actual First Amendment rights, then for free speech values.  (If the President is targeting reporters to silence them, that would likely be unconstitutional.)

What many are celebrating is, ultimately, unprotected activity designed to either protest Trump or expose the misdeeds of his administration.  The question then becomes:  how should we treat this activity, given our current political climate?  The praising of some of this activity requires both an altered perspective on First Amendment rights and on the exigencies of the need to resist President Trump.  Below is just a word of caution on both fronts.


First, free speech rights depend on some distinction between pure speech and regulable conduct.  In order to give pure speech wide freedom as against government intrusion, courts must distinguish that speech from disruptive activity, which is subject to regulation.  Undermining the distinction between expression and action may lead, ultimately, to less protection for speech.  This sort of cultural blurring may also diminish our respect for civil, peaceful methods of discourse and prevent the government from necessary regulation of violent or disruptive conduct, much of which actually interferes with others’ rights.

This blurring appears necessary, or at least justified, to those who believe President Trump must be resisted, even by marginally unlawful means.  The language of resistance echoes comparisons of Donald Trump to Adolph Hitler.  Comparisons to Nazi Germany – whether or not they are rhetorically effective at galvanizing people – are, in my view, shamefully overstated.  Of course, we want to prevent incremental upticks in deprivations of civil liberties for minority groups.  The mass protests at major airports in response to President Trump’s temporary travel ban were heartening.  Many Americans want to stop the targeting of specific groups way before we reach Nazi territory, and there is something we can learn from comparing the tactics of world leaders.  However, deploying the threat of a Nazi Germany lacks perspective, ignores actual history, and discounts the procedural mechanisms we have in place (still) for avoiding atrocities.

Hitler began depriving Jews (and political opponents, and members of many other minority groups) of rights in a much swifter and starker way, motivated by a murderous, genocidal evil that is far beyond the scale we are seeing today.  Nazi Germany did not entail a slow demise of small privileges to essential liberties, culminating in losing one’s right to life.  Yet, the extent to which someone believes this comparison will affect her views on the righteousness of transgressing the law to facilitate some great resistance.

There are reasons to be angry about what appears to be dangerous, perhaps impeachable incompetence and rashness by our President.  But, there are processes in place to check the harms he may cause – and his spillage of code-word information was not, in fact, illegal.  There are reasons to think that Trump’s executive orders banning travel to this country individuals from specific, Muslim-majority countries are anti-American.  But, these arguments are being processed by impartial judges sensitive to both constitutional rights and governmental prerogative in a way that comports with the rule of law.  There are reasons to be angry about Congress’s incompetent and rash attempts to repeal the Affordable Care Act.  But, there are other sides to that story, sides you may not be hearing.  When the government strongly involves itself in any process for the greater good, not everyone benefits, and many have been harmed by the ACA.  Many (although perhaps not all) of the issues of today involve line-drawing, and do not require violent or disruptive opposition to a murderous police state.

Those who care about our free speech regime must then ask when and whether we should preserve the necessary distinction between protected speech and disruptive conduct.  Civil disobedience can be an important tool for social change, but so is preserving the free speech values facilitated by our current, robust free speech regime.

Perhaps reporters should risk arrest in order to attempt to secure an important story.  Perhaps you think the joy of embarrassing Trump and protesting his potential Emoluments Clause violations is worth the erosion of the important distinction between political speech and unprotected vandalism.  But principles need to be considered, not just the expediency of the moment.

Imagine if whenever you were angry at your neighbor, you projected a giant middle finger onto her house (not just built one on your own property, as one embittered ex husband did).  Or imagine if you thought a restaurant’s serving of meat was murder, so you projected the slaughter of cows onto the restaurant’s façade.  What you are really doing is interfering with an individual’s right to use her property to express her own message and enjoy her liberties.  Speech does not serve free speech values if it leads to mass chaos or mass silence, where no one can be heard.  For that reason, the government can restrict the volume of speech, or restrict speech in particular forums, or allow newspapers to print only what they want without allowing room on their editorial pages to anyone who wishes to express a view.

So, while many rejoice at the constitutional literacy and righteousness of disruptive speech in the name of the resistance, I often wish there were more respect for the line between protected speech and unprotected disruption.  Everyone must make the choice for himself as to what balance should be struck between respecting order (and the speech/conduct distinction) and inspiring social change.  I prefer to peacefully blog than to force my views onto other’s property, but everyone has a tipping point, where social rules must be abandoned to fight an unjust system.

3 thoughts on “The Resistance and the First Amendment”

  1. “Of course, we want to prevent incremental upticks in deprivations of civil liberties for minority groups.”

    And majority groups as well. Just because the government enforces a deprivation of rights against the majority too (like depriving white kids of due process in college when accused of rape), that does not make it OK.

    Even if an equal percent of whites and blacks were punished equally for participating in anal-sex porn, having a beer, or getting an abortion (for instance) that would not make it at least minimally just, merely because everyone was being punished. It would still be unjust to punish people for things they have a right to do, even if all were punished equally.

    Punished everyone for sleeping under a bridge does not make it more just than only punishing poor people for sleeping under a bridge.


  2. I agree, although our thoughts may not intersect, freedom of speech is Germaine to the founding of our Republic and the lack of it will be the demise or our Democracy!

    Morose , is just a perception, as our future is derived by our works as those with ambitions drive our progress!


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