Analysis Law and Policy

The First Amendment Is in Increasing Danger Under a Trump Administration

Lisa Needham

One of the best ways to ensure people don't exercise their First Amendment rights is to make it far too hazardous and costly to do so. That is what is happening right now.

We live in an era of increasing crackdowns on public protests and whistleblowing: real, and increasingly effective, attacks on the First Amendment. The First Amendment, of course, promises us the right to free speech, but it also promises us the rights to assemble and to associate. In practical terms, this generally means that you can associate with whomever you choose to, assemble together in any fashion, and speak out against the government in whatever way you see fit.

One of the best ways to ensure people don’t exercise their First Amendment rights is to make it far too dangerous and costly to do so. That is what is happening right now.

Attempts to brutalize protesters and criminalize protest are nothing new. The 2008 Republican National Convention (RNC), for example, saw police firing chemical agents and projectiles at peaceful crowds and mass arrests. The overcharging of arrestees that followed the convention only added to the feeling of dystopia. Prior to even engaging in any protests, eight individuals were arrested and eventually charged under an anti-terrorism statute. Why? Because they had some banal items like light bulbs, which police alleged could be filled with paint or chemicals and thrown, along with more obviously problematic things like U-locks (to chain themselves to things) and caltrops (steel points you put on the street to deflate tires). But the key point: They hadn’t done a thing with those objects yet, so the anti-terrorism charge was more than a bit of a stretch. (Terrorism charges are more typically leveled when people are found with bomb-making material, or are found with innocuous material but have detailed how they plan to use that material to make an explosive.) Those charges were later dropped because the prosecutor felt that it would “distract the jury.”

As grim as the RNC charges were, they’ve got nothing on the latest episode of overcharging protesters. More than 200 people were arrested for protesting during President Trump’s inauguration in January. Most protesters were originally charged with only one count of felony rioting but, after very few of them pleaded guilty, a new grand jury indictment was returned that charges nearly all of them with eight felony counts, including inciting to riot, conspiracy to riot, and destruction of property.

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Make no mistake: Many of these individuals were first punished for exercising their right to protest, and are now being punished for exercising their right to demand a trial rather than a plea deal. The government is also attempting to try all the defendants together, which brings up serious questions of fairness.

As reported by BuzzFeed, Jason Flores-Williams, an attorney representing three of those defendants, “has already asked District of Columbia Superior Court Judge Lynn Leibovitz, who is presiding over all of the Inauguration Day prosecutions, to require a separate trial for one his clients, rather than agree to the government’s plan to try defendants together.”

“There is a spillover prejudicial effect where when evidence against one person as I said ends up in the jury’s mind being evidence against everyone else who was there, regardless of whether that evidence was actually against them or proven against them in any direct or specific way,” Flores-Williams told BuzzFeed.

The Inauguration Day protesters face felony charges that carry up to ten years in prison. That’s far too high a price to pay.

Equally chilling, six journalists were also arrested during the inauguration and charged with felony rioting. (Charges have since been dropped for all but one of the journalists).

Another way to ensure that people aren’t able to speak truth to power is to restrict them from documenting abuses of that power. States keep trying to pass laws that criminalize the filming or photographing of police. Indeed, whether you can record police or not is still an open question for the courts. A divided U.S. Court of Appeals for the Fifth Circuit recently ruled on the case of a Texas activist who was filming police activity outside a police station. The court held that individuals have a First Amendment right to film the police within the states of the Fifth Circuit: Louisiana, Mississippi, and Texas. The Fifth Circuit also noted that every circuit court that has ruled on the issue has found that the First Amendment does actually protect the right of people to film police officers while those officers are performing their duties. However, several circuits haven’t ruled on the matter, or have stated that the right isn’t clearly established. Regardless of court rulings, police continue to push back: Just in the last year, the ACLU has had to go to court in Louisiana, Massachusetts, and Pennsylvania to defend the right of individuals to record the police. Being able to record the police and share those recordings is, of course, a key component of journalism in the modern digital and visual era.

Clamping down on whistleblowers and leakers is another way to ensure that people don’t speak out. If the price of speaking out is too high, people will stop. The Obama administration aggressively prosecuted leakers at a much higher rate than during the administrations of his predecessors, even going so far as to oppose allowing leakers to mount a defense based on the First Amendment. In other words, the prosecutors filed motions to prohibit defendants from saying that they were performing a public service by leaking to the press. However, the defense should be allowed because the public has a First Amendment interest in knowing about the workings of government, and government employees are in the best position to share that information.

The Trump administration looks to be equally aggressive, if not more so, having undertaken its first leak prosecution by going after Reality Winner, who allegedly leaked information about Russian interference in the 2016 election. To be sure, what Winner allegedly leaked is information that the public absolutely does need to know about: the depth and breadth and persistence of Russian attempts to hack the 2016 U.S. election. However, she now faces a fine of up to $250,000, a prison sentence of up to 10 years, or both.

Trump has stated he’d consider jailing journalists over leaks, while people like former Speaker of the House Newt Gingrich (R), and others, have stated that federal employee leakers who talk to the press are committing treason. They aren’t, of course. In the United States, “treason” generally refers to U.S. citizens who use force to align with enemies of the country. Attorney General Jeff Sessions, of course, wants to actively pursue and prosecute leakers rather than address his own peculiar failure to remember when he talks to Russians.

At the same time as the threat of leak prosecutions looms, congressional Republicans are looking to lock down press access to their members, in large part because they don’t want to talk about the nightmare that is their health care bill. Journalists were told they couldn’t film interviews with senators without getting permission from the (Republican-led) Senate Rules Committee. Tim Scott (R-SC) bizarrely claimed that if journalists could roam the halls and talk to senators—something they have always been able to do—the cameras might capture his ATM PIN and he needed to keep that private. This effort, mercifully, failed relatively quickly, but there’s no reason to think that congressional Republicans who have been dodging things like town halls left and right wouldn’t welcome greater press restrictions.

Criminalize protest, veil the work of police, prosecute those who share vital information with the American people, and limit availability and accountability of elected officials. These are pages from an authoritarian playbook, not a democratic one, but it is the world we live in now. We need to be vigilant against further depredations where the right to speech is concerned by supporting protesters and whistleblowers in any way we can.

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