From the ACLU: How Officials in Georgia are Suppressing Political Protest as ‘Domestic Terrorism’

Political commentary from an influential advocacy group.

Again note the strategic use of terminology.

- Click here for the article.

Over the past few months, 42 activists have been charged with “domestic terrorism” under Georgia state law. Their acts of “terrorism”? Alleged property damage and trespassing while protesting. These prosecutions exemplify a highly problematic trend of both the federal and state government: using domestic terrorism powers to punish dissent.

In Georgia, the arrested activists are part of a movement seeking to stop the construction of a $90 million police training facility located in a forest in Southeast Atlanta. Since late 2021, protesters under the banners of “Stop Cop City” and “Protect the Weelaunee Forest” have raised concerns over climate justice, displacement of Black communities, and increasing militarization of police forces. Protesters have camped out in the forest, staged marches, and hosted community events. At times, a small minority of protesters have allegedly damaged property.

Georgia police have responded with overwhelming and disproportionate force. Police killed one protester in January. They have arrested dozens more, including a legal observer associated with the Southern Poverty Law Center and the National Lawyers Guild. And prosecutors have levied severe charges under Georgia’s rarely-used domestic terrorism statute.

Until 2017, Georgia’s domestic terrorism statute criminalized acts intended to or reasonably likely to kill or injure at least 10 people. In the wake of the massacre of nine Black parishioners by a white supremacist gunman in Charleston, South Carolina, the Georgia legislature amended the statute to vastly expand its reach. The new law broadened the state’s definition of “domestic terrorism” to include certain property crimes committed with the intent to “alter, change, or coerce the policy of the government” by “intimidation or coercion.”

From NBC - 2: ACLU reaches out to Collier school district over anthem protestor ban

Possible test case?

Do students have a right to protest?

- Click here for the article.

The Collier County School District is reacting to a principal's announcement that he would ban students from sporting events if they sit during the national anthem.

The American Civil Liberties Union of Florida has reached out to the school district after what they call a restriction of freedom of speech. In response, the district said it recognizes a student's First Amendment right to express thoughts and ideas as long as the student isn't being disruptive.

NBC2 first told you Wednesday about Lely High School's new policy, but the school district said Thursday it's a misunderstanding, saying Principal Ryan Nemeth's message was taken out of context and he regrets what he said.

Last Friday morning, Lely High students watched as their principal took to the morning announcements to speak about the national anthem.

"You will stand, you will stay quiet. If you don't, you're going to be sent home. No refund."

Is there a constitutional right to protest?

The word does not exist in the Constitution, so it requires interpretation.

- From the ACLU of Oregon:

You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks. But in some cases the government can impose restrictions on this kind of activity by requiring permits. This is constitutional as long as the permit requirements are reasonable, and treat all groups the same no matter what the focus of the rally or protest.

The government cannot impose permit restrictions or deny a permit simply because it does not like the message of a certain speaker or group.

- More from the ACLU of Northern California.

How far doe this right extend? Did it apply to the Occupy Movement?

- Detail from ProPublica: Just How Much Can the State Restrict a Peaceful Protest?

The First Amendment is not absolute. Government can make reasonable stipulations about the time, place and manner a peaceable protest can take place, as long as those restrictions are applied in a content-neutral way.

But what constitutes a reasonable time, place and manner restriction? "It depends on the context and circumstances," said Geoffrey Stone, a professor specializing in constitutional law at the University of Chicago. "Things like noise, blockage of ordinary uses of the place, blockage of traffic and destruction of property allow the government to regulate speakers."

Stone gave a few examples of impeding ordinary usage: disturbing patients at a hospital, preventing students from going to school, or, more relevant for the Occupy movement, disrupting the flow of traffic for a long period of time.

Protests are fine, occupation is not.

- So says the Federalist Blog.

. . . the federal right to assemble was “to protect the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.” The Supreme Court case of United States v. Cruikshank observed the purpose of assembly was for petitioning government: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.”

In England, the right of assembly existed from early times and was strictly tied to the right of petitioning Parliament for political purposes, which the crown had always strongly contested. Different acts of the Tudors and Stuarts sought to limit and restrict assembly.

There is a big difference between gathering to draw public attention to some grievance or message through disruption of the public peace and peacefully gathering to address common public concerns and to circulate a petition for signature. The later requires no mob occupation or disruption of the peace or laws.

From a purely historical standpoint, “Occupy Wall Street” is nothing more than rebellion, and as such generally been dealt with by use of the militia to suppress.

From the New Yorker: Colin Kaepernick and a Landmark Supreme Court Case

For 2305 - the right to not be coerced to make displays of patriotism was only established by the Supreme Court in the 1940s. It features a court case central to our discussion of both religious freedom and free speech.

Here's the story:

- Click here for the article.

Kaepernick refused to stand as a form of political expression—to protest, he said, the oppression of African-Americans by the police and others. The Supreme Court case arose out of a related First Amendment right—to exercise the freedom of religion. In 1943, at the height of the Second World War, the court heard a challenge by a Jehovah’s Witness family to the expulsion of their daughters, Marie and Gathie Barnette, from a school in West Virginia. The sisters had been punished for refusing to salute the flag and repeat the Pledge of Allegiance, something state law required of students. (As Jehovah’s Witnesses, the parents did not believe in making such salutes and oaths.) Precedent was not on the Barnettes’ side. In 1940, the Court had heard a very similar case involving Lillian Gobitis, age twelve, and her brother William, age ten, whose parents were also Jehovah’s Witnesses and who were expelled from the public schools of the town of Minersville, Pennsylvania, for refusing to salute the national flag. In an eight-to-one decision in Minersville v. Board of Education, written by Felix Frankfurter, the court rejected students’ claim that their freedom of religion and speech should void the school’s decision to expel them. (Justice Harlan Stone was the lone dissenter.) “National unity is the basis of national security,” Frankfurter wrote. “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.”

What followed, three years later, was one of the great reversals in Supreme Court history. The Court had a new member—Robert Jackson.* More important, even amid the patriotic displays associated with the mobilization for war, the degradations of Nazi Germany had impressed themselves upon the American conscience. The result of the case flipped the result to a six-to-three victory for the family, and Jackson’s opinion in West Virginia State Board of Education v. Barnette stands as perhaps the greatest defense of freedom of expression ever formulated by a Supreme Court Justice—and, not incidentally, a useful message for the N.F.L.

The core idea in Jackson’s opinion is that freedom demands that those in power allow others to think for themselves. In nearly every line, Jackson’s opinion is haunted by the struggle on the battlefield against, in his phrase, “our present totalitarian enemies.” “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men,” Jackson wrote. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.” Such melodramatic phrasing may feel more appropriate for the worldwide crisis of that era than for the present one, but the message of tolerance also resonates on the less fraught setting of a football gridiron.

For more on West Virgina v Barnette click here.

For the decision in the case click here.

The Political Background of the Celebration Christmas

Apparently the celebration of Christmas had a very different feel prior to the mid 19th century. It was quite rebellious.

Does the freedom of speech include the right to tell prospective jurors about jury nullification?

The NYT details a case where a man - an advocate of jury nullification- who has been standing outside a U.S. Courthouse has been informing potential jurors of the practice. Not surprisingly, prosecutors don;t like this and want to punish him for doing so. They accuse him of juror tampering. Lawyers for the man charged argue that what he is doing is protected by the First Amendment.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, said: “The government is dangerously wrong in claiming it can criminalize sidewalk advocacy supporting jury nullification. Other than the extremely limited situations in which someone seeks to influence a known juror in a case, jury nullification advocacy is squarely protected by the First Amendment.”

This story hits a few points covered in 2301, if not the very concept of consent and how it plays itself out in the governing system. Remember that the jury that acquitted John Peter Zenger effectively nullified the libel laws that existed at that time. It's worth pointing out that he is handing out information created by an interest group called the Fully Informed Jury Association.

Based on what we've covered in class - is this protected speech? How might a court rule on this case?

Are the Occupy Wal Street Protests Covered by the First Amendment?

From Slate, a contemplation of the conflict between First Amendment rights to assemble and protest and the rights of government to secure health and safety:

You cannot fault Bloomberg for his goals; they embrace the fundamental tension at the heart of the First Amendment and public protest. Case law dealt the Occupy movement some fairly heavy cards. Their speech, on matters of core political concerns, sits at the top of the pantheon of what the First Amendment protects. And while Zuccotti Park is technically private, it functions as a public park, and was dedicated under local zoning laws for round-the-clock public enjoyment in 1968. Public parks enjoy an exalted status in the geography of the First Amendment, enshrined in the sort of language men like the first Justice Roberts used to conjure images of the Periclean agora:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.

But practice First Amendment law long enough, and you learn that for every uplifting paragraph like that, there are a thousand cases bending an abstract right to the prosaic realities of protest.

Snyder v. Phelps

The case involving the Westboro Baptist Church's right to protest at soldier's funerals ("God Loves Dead Soldiers," etc...) will be argued Wednesday October 6th. ScotusBlog states that it pits protest against privacy.

Does the Westboro Baptist Church Push the Limits of Peaceable Assembly?

We're covering participatory rights this week in 2301, including the right to peaceably assemble. The, let's say unique, protests of the Westboro Baptist Church (wikipedia entry) have pushed the limits of what is and is not peaceable.

The New Republic reports on their attempts to expand their protests to New York.

Man Arrested for Saying He Hates the Police

This might have legs. I wouldn't be surprised to see a test case to come out of this. The Gates arrest might have the unintended consequence of persuading more people to think of disorderly conduct arrests as merely tools for police to stifle protest.

"People talk about the Gates thing in terms of race, but it's an ongoing problem of police using disorderly conduct to shut people up."

Twitter Effect Oversold?

George Friedman is not jumping on the Twitter bandwagon. He argues that the revolution in Iraq appears to have stalled partly due to its support not branching out beyond the "twittering classes." Western commentators may have misread the level of support that existed on the ground because the only voices they were hearing were those who used the technology:

The global media, obsessively focused on the initial demonstrators — who were supporters of Iranian President Mahmoud Ahmadinejad’s opponents — failed to notice that while large, the demonstrations primarily consisted of the same type of people demonstrating. Amid the breathless reporting on the demonstrations, reporters failed to notice that the uprising was not spreading to other classes and to other areas. In constantly interviewing English-speaking demonstrators, they failed to note just how many of the demonstrators spoke English and had smartphones. The media thus did not recognize these as the signs of a failing revolution.

The Clampdown Begins

Soldiers in Myanmar have begun clamping down on the protests. They've been shooting into crowds and dragging away troublesome monks.

It's standard totalitarian procedure. The monks apparently are a strong enough organization within the country that they believe they have the ability to force limits on the country's military rulers--which would make them mere authoritarians.

The rulers, if they are to keep the status quo, must demonstrate that they cannot be limited, thus the clampdown.

So that's were we are.

Monks Protest in Myanmar

Myanmar is on most lists of the world's most totalitarian, repressive governments. Their military leaders take a dim view of opposition in any form. They have been able to operate hidden from view over much of their history, but that may change.

Recent protests by monks have tested their ability to effectively clamp down dissent, both for the sheer size of the protest and because they have all been televised. Though the leadership may have few moral qualms about a broad attack on the monks, it could look bad.

Some have argued that the most effective tool for expanding individuals liberty has been mass communications, especially satellite television, and now the Internet. Little happens in secret anymore. Television coverage of the attacks on civil rights marchers in the 1960s helped build support for the Civil Rights Act of 1964, but this result isn't inevitable. The Rwanda massacres were fueled by radio propaganda, so the sword is double edged.