But I have a right… (To be violent?)
Today we often hear the cry that, “I have a right” and, “I have freedom of speech.” Today the mantra seems more and more to be, “I can say anything I want and protest anything I want, any way I want, if I happen to be personally offended.” That is the big lie that we have had forced upon us!
What makes your right more important than mine, or for that matter, my right more important than yours? Logic would say that one has to overrule the other, otherwise chaos will ensue and no good will be served. In fact, that is exactly what is happening in our society today. So how do we decide whose rights take precedence? Is it the one that is morally just, the one that is socially just, the one that impacts the majority, or is it something altogether different?
Our founders had something in mind when they penned the first amendment. Now, if you happen to be one of the persons who think our founding fathers did not know what they were doing or that the founding documents are “outdated” and not applicable today, then surely you will recognize the rule of law and common sense. That is to say, unless you are among the growing crowd that exercises no common sense and care only for their personal feelings, the rule of law will make sense to you.
Let us consider the question of whose rights trumps whose? The fact is that the content of the speech cannot and should not influence the decision. I remind you that the First Amendment says that two things relative to the conversation here are protected, speech and the right to peaceably assemble. The key points in the Amendment are not the topic of speech or content but rather the purpose and manner. This has been addressed by the Supreme Court numerous times, specifically in the now famous Schenck v. U.S. case. Justice Oliver Wendell Holmes Jr. drafted his opinion and enumerated one consideration which restricts the rights, which so many claim they have. He said, “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.” In subsequent cases, restrictions on time, place and manner were allowed due to dangers or hazards. We should note that the content was not in question, but rather the circumstances and other factors that may lead to harm. Circumstances are important in restricting these rights. Clear danger is not enough. It must also be present. If I am in California threatening by telephone to assault you, there is no present danger, that is to say there is no immediacy. If on the other hand I am at an assembly and counter protesting what you are protesting and I begin to shout for my group to destroy your group, as we move in procession toward your group, is there a clear and present danger? Surely all must admit yes, and thus that speech/expression would not be protected.
Often there are “social activists,” and colleges or universities are heavy with professors that impress upon young minds their “right to protest,” who neglect to explain that the right to protest is not absolute. Unfortunately the young protester and pawn of the activist learns that lesson too late. There are also organized activists that claim the need for social change and seize the otherwise peaceably assembled events, which may be full with young peaceful protesters, to force their violent agenda in an effort to create awareness of their activist platform. So again, whose right trumps whose? The clear indication from the courts, time and again, is that law enforcement and government may restrict speech and assembly that pose a “clear and present danger.” We must create an environment that encourages safe, peaceful assembly and expression.
We are seeing now that government has been given the green light through case law to require permits for assembly, which aids in law enforcement working with the organizer to assist in a peaceful event. The role in law enforcement is clear; first protect people and then property and finally the rights of all, those assembled and the community at large. Police officers understand that this permit process and assistance of individuals and groups to peaceably assemble has nothing to do with their personal support or opposition to the assembly purpose or topic, but rather the law enforcement duty to protect people, property and rights. Police cannot “take a knee” if they do not like the message because officers are expected to serve and protect, regardless of the message. That is why you will see black police officers guarding the parade route of a KKK rally; they know their job and do it well!
The permit process, the time, place, and manner restrictions and the “clear and present danger” considerations for restrictions, all must be equitably applied, regardless of content and topic of an assembly or protest. No pre-textual application should ever be permitted. If there is a clear and present danger, the assembly can be restricted, and should be restricted without fear of civil litigation, which is not to say their will not be litigation. Law enforcement officers are not attorneys, officers are the protectors! The officer’s role is not to litigate, but to mitigate and alleviate undue dangers legally. If law enforcement are true to their oath, those that secretly use the young impressionable mind to further their agenda will find it more difficult. So to answer, whose right trumps another, the answer is simply those that peaceably assemble and present no clear and present danger.
To ensure safety and sound decisions, law enforcement executives must be provided documented intelligence demonstrating the immediate need for action when it is available and the executives must act courageously. They may choose to offer alternative dates, times, locations and if such dangers are strongly supported they should consider the option of cancelling the event and let the lawyers fight it out in civil court. Litigation is highly preferred over multiple injuries and deaths, and the case law is on the side of the governing body IF the intelligence is properly documented and researched and other options are unavailable.
Finally, at the forefront of any success are a good plan, good training and positive relationships. The best thing an executive can do is to prepare in advance with policies, strategic and operational plans and prevention methods developed with the community. The time to plan is not when the bottles begin to fly or the torches are lit but when there are calm open minds. Los Angeles, California voted in October 2017 thirteen to one to ban certain items from “expressive activities” (protests). This vote went forward even against the threats of the ACLU because they are putting safety over the mindset that the right is absolute. They did not eliminate the right to protest or assembly, they just restricted it to make it safer to do so.
In the end any action or inaction leading to violence and/or injury will be blamed on the law enforcement executive, regardless of the government leader making the call. Courageous leadership is necessary and written intelligence and recommendations are essential in defense of such courage after the incident when the vultures circle.
Richard “Rick” Arrington