Im-Politic: A Worrisome Hole in U.S. Free Speech Protections

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civil liberties, Constitution, First Amendment, free speech, freedom of expression, Im-Politic, mob rule, Oregon, peaceful protests, Portland, protests, Supreme Court

However crazy it sounds, an idea that came to me in high school bears heavily on the burst of recent, overlapping national controversies about free speech, peaceful protests, and political violence. In fact, it spotlights what looks like a gaping, increasingly important, and increasingly worrisome hole in U.S. Constitutional protections not only for legitimate expressions of opinions, but for exercises of other significant liberties.

The idea: That public authorities have an affirmative obligation to protect the expression of unpopular and even disgusting viewpoints even, and especially if, they might ignite violent reactions, and when those violent reactions were taking place.

You might think that this is longstanding Constitutional principle, policy, and practice on the federal, state, and local levels, but that’s not so. And the result is nothing less than an invitation to mob rule that thankfully hasn’t been taken up often during American history, but seems all too tempting nowadays.

I first became aware of the problem when my senior year history class focused for a while on civil liberties and we read about a 1949 Supreme Court case called Terminiello v. City of Chicago. The question at hand was whether local authorities could prosecute a speaker expressing views in a public place to that created “a condition of unrest, or…a disturbance.”

Writing for the majority, Justice William O. Douglas, a staunch defender of civil liberties, argued that the Chicago speaker, a suspended and indeed horrifically bigoted Catholic priest named Arthur Terminiello, and others like him, were entitled under the First Amendment to voice opinions even which (in the words of the presiding local judge) “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”

The Douglas opinion, in my view, was especially valuable because it held that no one – either private citizens outraged for whatever reason, morally legitimate or not, or government at any level – could censor, otherwise prevent during the fact, or punish the expression of any view belonging in the category of Constitutionally protected speech. As a result, the majority wound up expanding that realm of protected speech.

Unfortunately, this legal standard only lasted for some two years. In a 1951 case called Feiner v. New York, the Supreme Court ruled that, as described in this summary, “The First Amendment permits the government to take action against speech when there is a clear and present danger that it will cause a disturbance of the peace.”

In the 1969 case Brandenberg v. Ohio (about two years before my high school class), the Justices seemed to narrow the grounds for suppressing speech that created this kind of “clear and present danger” (a broader category of circumstances that could justify curbing speech and other forms of expression) to speech likely to incite “imminent lawless action.”

But it was only in 1977 that a truly decisive blow seems to have been struck against what I consider a blaming the victim approach when the Court ruled that government couldn’t prevent the expression of most repugnant ideas for fear of threatening public order before the fact either. The case was called National Socialist Party of America v. Village of Skokie, and upheld an Illinois Supreme Court decision that prevented a heavily Jewish municipality from preventing a demonstration by a group of (as the name makes clear) Nazis. udeupheld the defended

All the same, the group of questions I wound up asking in high school about Terminiello remains unanswered. Specifically, if hateful ideas like Terminiello’s are Constitutionally protected speech, didn’t government’s First Amendment obligations logically extend further than affirming his right to express them amid the threat or use of violence? Wasn’t government Constitutionally obliged to make sure that such expression actually take place – for example, responding to threats of violent responses by declaring that such actions themselves would be prosecuted, and following through? Wouldn’t failing to require these protective actions too often threaten to turn the act of expressing protected speech into a test of physical courage, and thereby convince too many who hold unpopular views to hold back?

Which brings us to the tragic killing last weekend in Portland, Oregon of right-wing protester Aaron Danielson amid a spate of violence that resulted from the entry into the city’s downtown of a motor vehicle caravan carrying many individuals of this ilk.

The caravan has been widely described as needlessy provocative, but the grounds seem shaky at best. According to some Mainstream Media accounts, the vehicles “descended on the city and sparked confrontations with Black Lives Matter counterprotesters.” But this phrasing raises more questions than answers. For example, what exactly about the caravan’s trip “sparked confrontations”? Were the opening clashes completely simultaneous? If not, who acted first?

One answer – and revealingly, from the now-conspicuously woke New York Times – is that “As the vehicles displaying Trump flags and signs enter downtown Portland, protesters [gathered] along the street to confront the caravan and in some cases block its route.” I’ve yet to see any accounts blaming the caravan-ers for starting the clashes.

The caravans could legitimately be blamed for knowingly, and even illegally, inflaming an already volatile situation. But no Portland or Oregon officials have declared that the act of driving through downtown itself was illegal, or even constituted a permit-less protest. Certainly, the city’s police had no plans to stop it.

And why would they? Since when has transiting a public thoroughfare not explicitly declared off-limits by the authorities been “provocative,” much less of dubious legality? Which is where the Terminiello point comes in.

The authorities in Portland knew beforehand that the caravan would take place. Their “goal” was to restrict their route to surrounding Interstates – and away from that downtown core. But what the heck is that about? They were afraid of confrontations? If so, didn’t they have an affirmative obligation to make sure that this event could take place safely? In fact, why wasn’t protection offered in advance? And P.S.: These questions pertain whether the caravan was considered by the police to be a protest, or simply an attempt to visit a public place. Finally, regarding the right to access public spaces like downtown Portland for lawful reasons – which seems like a pretty foundational civil right – why in the first place has the area’s government permitted these blocks to become a dangerous near-combat zone for months and even longer?

Of course, decisions about most effectively allocating available resources in a given situation allocation – which need to be left up to the authorities – will always prevent police or other law enforcement agencies from protecting every exercise of Constitutionally protected freedoms adequately. The challenge, moreover, is especially great in these fraught times. At the same time, what better argument could be made for more, rather than fewer, law enforcement assets?

More important, though, the notions that travel through a public street as such, whether simply expressing an agenda or not, amounts to a provocation that is somehow illegal or even improper, and that government has no duty actively to safeguard it, should be completely unacceptable to everyone who values free expression. Because if legitimate authority doesn’t make sure that threats or acts of violence don’t shut down free speech and the exercise of similar rights, you can be certain that the mob – or mobs – will quickly take notice.

Im-Politic: Never-Trumper Evidence That the Feds Haven’t Worsened Portland’s Violence

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Chris Cillizza, CNN, Im-Politic, Josh Campbell, law enforcement, Mainstream Media, Oregon, peaceful protests, Portland, protests, riots, Trump, violence

I’ve long believed that one of the best ways to confirm or at least support a claim made by someone else isn’t to present evidence from a source that’s sympathetic to that point of view. It’s to present evidence from a source that’s not the slightest bit sympathetic.

That’s why I’m focusing today on a CNN post from yesterday and what it says about the charge that the presence of various federal law enforcement units (some allegedly not identified) is mainly responsible for the upsurge in violent protests in Portland, Oregon – not the activities of at least some of the protesters themselves. In two noteworthy ways, it compellingly reinforces that case that the protesters and not the federal units dispatched by President Trump actually are the ones at fault.

The post is from Chris Cillizza, an Editor-at-Large with a clear Never Trump worldview at a news organization that’s unmistakably hostile to the President. (Just take a look at CNN‘s home page at any given moment if you doubt me.) Moreover, the reporter-on-the-ground who Cillizza interviewed to find out “What the heck is going on in Portland?” – Josh Campbell – seems to have made up his mind on the subject, too. How else can you explain his contention that

“Portland is now witnessing a standoff between protesters and an administration that continues to ratchet up its heated rhetoric to (falsely) describe the city as being in a state of total chaos and anarchy. While there have been incidents of rioting at night, including people launching fireworks at the federal building, setting fires outside, and allegedly attacking federal agents, the focal point of that activity largely centers on the city block housing the federal building. Despite the President’s descriptions, Portland is not a city under siege.”

In other words, “Nothing unusual to see here – except maybe on one city block.” And of course not a chance that this violence would spread if not actively resisted.

That’s why I found so noteworthy these two statements by Campbell – based, it’s important to remember, on his eyewitness observations. First:

“As I was interviewing the mayor Wednesday night among a crowd of hundreds of peaceful protesters, a group of rioters gathered near the fencing outside the federal building and began lobbing projectiles at the building and setting fires. In a pattern we have seen over and over, when federal agents in the building are provoked, or a fire set by rioters risks destroying the building, tactical officers will come out in full force and launch tear gas to disperse the crowd.”

Second:

“[Y]ou have a mixture of federal agents from different agencies serving as guards and riot control officers at the downtown courthouse. At night, when a portion of the crowd turns violent, agents will often line up and push protesters back blocks away from the building using tear gas, rubber bullets and batons.”

On the one hand, I’m grateful that bias hasn’t distorted Campbell’s senses enough to prevent him from recounting events in a way that plainly undercut this bias. On the other, I can’t help but wonder: If someone evidently inclined to blame President Trump for most of Portland’s latest troubles is (however unwittingly) making clear that the violence has (at least often) been started by the federal police, isn’t it possible that the protesters’ activities have been even more provocative – and less excusable – than Campbell and CNN are reporting?

Following Up: Obama’s Dangerous Switch on Trade Policy

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bubbles, consumption, consumption-led growth, debt, exports, Financial Crisis, Following Up, free trade agreements, growth, imports, Jobs, Nike, Obama, Oregon, prices, recovery, supply chains, TPP, Trade, Trade Deficits, Trans-Pacific Partnership

Although he didn’t make the point in his speech yesterday on trade at Nike’s Oregon headquarters, President Obama’s choice of that venue to tout his proposed Pacific Rim trade deal symbolized a recent change in his approach to globalization generally that’s as stunning as it is economically perverse. A chief executive who entered office correctly identifying the main mistakes leading to the last, devastating financial crisis has become a president apparently determined to duplicate them.

At a March, 2009 press conference, just after his inauguration, Mr. Obama gave one of the plainest indications possible that he correctly understood both the fundamental problems besetting the economy and the essentials of the solution. He emphasized that his highest priority was ensuring “that we do not return to an economic cycle of bubble and bust in this country. We know that an economy built on reckless speculation, inflated home prices and maxed-out credit cards does not create lasting wealth. It creates the illusion of prosperity, and it’s endangered us all.” Thus the nation needed to move “from an era of borrow-and-spend to one where we save and invest.”

The following year, Mr. Obama’s leading economic advisors made the trade policy connection explicitly. An export increase they identified that narrowed the nation’s broadest international deficits (but not its trade deficit) would help replace “growth…fueled by unsustainable borrowing [with] growth that is based on productive investments [which is] more stable.” So although the president’s stimulus program and other recovery measures can be faulted for ignoring these imperatives or poorly executing them, he and his staff unmistakably recognized them.

As many remarked this week, Nike is anything but a significant exporter – in fact, quite the opposite. Because it manufactures almost nothing in this country, it’s a major corporate engine of net imports – and therefore debt. But as The Wall Street Journal noted leading up to Mr. Obama’s trip, the company’s offshoring- and importing-friendly business model squares quite nicely with a new White House argument for initiatives like the Trans-Pacific Partnership (TPP). In the president’s words, “Over the course of 20, 25 years, what you saw was trade benefit the U.S. economy in the aggregate with cheaper prices, inflation low, the creation of a global supply chain that was good for U.S. companies.”

It’s true that Mr. Obama has continued to portray the TPP as an boon for American exports. But his claim that the last decades of U.S. trade flows have strengthened the economy on net by fostering production and job offshoring (what else could he have meant with his supply chain reference?), while enabling imports to prop up consumption, in effect endorses the borrow-and-spend economic strategy he had once correctly condemned. Worse, this statement signals that the president doesn’t even recognize the dangers created by his pursuit of trade agreements modeled on predecessors that have greatly worsened America’s trade deficits – and thus are dragging on currently subpar growth and job creation. It’s obviously supercharging the odds of a financial crisis rerun.

All of which makes pretty ironic Mr. Obama’s claim that critics of his trade policy are “wrong” on the facts. Once he was indeed right. Now he’s clearly forgotten.