Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. — First Amendment to the Constitution
For the past 229 years, those 45 words have served as the foundation of our democracy. Yet, for the most part, we take the extraordinary freedoms they guarantee for granted.
We go where we want, say what we want, read what we want—including Mahoning Matters — and worship where and how we want without thinking for a moment that we owe James Madison a sincere thank you for enumerating the rights that make America the greatest country in the world.
Occasionally, however, events can bring the First Amendment to the forefront of the national consciousness. That’s exactly what happened this week as people across the nation, including here in the Valley, took to the streets to express their outrage over the murder of George Floyd by a Minneapolis police officer. In so doing, they were not only exercising three of the rights assured by the First Amendment, they were following in the footsteps of heroes who utilized those rights to secure civil, human and workers’ rights and to end the war in Vietnam.
As was the case when workers took to the streets, when Martin Luther King, Jr. and John Lewis marched across the Edmund Pettis bridge and when hundreds of thousands of people took part in the National Moratorium to End the War, the largely peaceful protests against the Floyd murder are shining a glaring light on injustice. The protests are driving a much-needed and long-overdue national conversation on policing, race, and inequality that has the potential to spur significant change and strengthen our nation and our democracy.
In other words, the First Amendment is working exactly as Madison and the founders hoped it would.
And yes, there are those who believe that because some looting, vandalism, and violence have occurred during the demonstrations the government should use its considerable power to quash future protests. Fortunately, the plain language of the First Amendment and volumes of legal precedent have erected nearly unbreachable walls that protect our right to speak, assemble and demand action from our elected officials.
No First Amendment rights are absolute. For instance, the Supreme Court has ruled that you may not yell “Fire!” in a crowded theater and the Constitution provides for the right to “PEACEABLY assemble.” Yet, the “clear and present danger” standard is a particularly high hurdle for government officials to overcome if they want to prevent planned gatherings ahead of time.
In fact, courts have repeatedly held that authorities aren’t justified in breaking up public protests just because they slow traffic, inconvenience pedestrians, are annoying or make other people mad — even if the person who is angered or annoyed happens to be the president.
The way to deal with those who commit illegal acts during a protest or demonstration is to arrest, charge, and prosecute the offenders.
Allowing government authorities to use looting and vandalism as a rationale for trampling on our First Amendment rights is akin to placing a knee on the neck of our democracy. If that happens, our nation will not survive,
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to news@mahoningmatters.com.
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YOUR LEGAL RIGHTS | What First Amendment rights do protestors have? - MahoningMatters.com
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