The First Amendment to the Constitution is widely misunderstood. People often think it provides freedoms that it doesn’t – like protecting political speech at work – or that it limits speech that is actually protected – like vocally protesting government actions. The latter is at the heart of the J20 case against Inauguration Day protestors in Washington, D.C. In the view of many legal experts, the prosecutors’ handling of this case has frightening implications for protected speech.
What is the J20 case?
January 20, 2017 was Inauguration Day. Pop culture has focused on whether the inauguration or its protests drew bigger crowds, but the protests have raised much bigger legal concerns. Thousands of people participated in the Washington, D.C. Inauguration Day protests, and a relative few, probably as part of planned actions by DisruptJ20, engaged in property damage and violence. Six police officers suffered minor injuries, and property damage amounted to an estimated $100,000. More than 200 people were arrested and indicted on felony riot charges; additional charges of inciting or urging to riot, conspiracy to riot, and destruction of property – which could result in 60 years in prison – were later added.
Why is the J20 case a threat to free speech?
There are two primary issues of concern. The first is the police response to the protests. Police used a technique called kettling to round up all of the protesters within the multi-block area where vandalism had occurred. While not illegal, kettling is controversial because it inevitably subjects the innocent to the same treatment as suspects. In this case, that included being held outdoors and zip-tied for 7 to 16 hours without food, water, or bathroom facilities before being formally arrested. The ACLU has filed a civil lawsuit challenging the legality of the mass arrests and alleging the use of force – including assault as punishment – by police on January 20.
The second concern is the unprecedented legal response to the protests. Except for a handful of credentialed media and legal observers, everyone rounded up on Inauguration Day was indicted under felony riot charges. The only evidence against the majority of them is their presence at the protest; the few who could be linked to violence or vandalism face additional charges. Although 30 defendants have filed a joint motion to dismiss the charges, the first group of defendants went to trial in mid-November.
In the wake of the J20 protests, Republican lawmakers in at least 18 states introduced legislation to increase the severity of charges for traditionally nonviolent protest tactics, like blocking highways. Passing these laws or convicting the mass-accused protesters would be a blow to the First Amendment.