By KEVIN GOLDBERG
On the morning of January 6, 2021, I set off from my front porch to run, exactly 1.24 miles from the United States Capitol. I intentionally chose a route to go through both the East Capitol grounds and the Supreme Court. The “Stop the Steal” rally hadn’t really started, but I didn’t like what I saw. My early thoughts included:
“Wow, there are already a lot of people here. “
“There should be a lot more security.
“Why do I see smoke coming out of the ground in various places?” I’ve never seen this before.
I continued my run, crossing the path of a friend who was going to see what was happening. I shared my concerns with him and told him to be careful. I remember vividly saying, ‘I have a feeling that things are going to really turn out badly after Trump speaks.
January 6 will forever be alongside a select few dates in American history. Images of rioters on Capitol Hill in an unsuccessful attempt to overthrow the election of Joe Biden as the 46th President of the United States will remain etched in our brains forever.
For Washington, DC, residents like me, concerns about the balance between freedom and security went beyond a philosophical framework. At the beginning of the afternoon, we received urgent messages to pick up our children from school as soon as possible. We crouched down in our homes hoping that the chaos would quickly be contained, becoming a form of lockdown. Road closures hampered our movement for days; high fences prevented our usual enjoyment of the Capitol grounds for weeks.
But what sets this date apart is its profound psychological impact resulting in serious soul-searching into our core values as a nation.
As we approach the first anniversary of this insurgency, individuals have been charged, convicted and sentenced. The broader systemic review to identify the genesis of the violence and whether it could have been avoided has been delayed. Every day brings questions about the possible ramifications for the future of the free and fair elections that are the cornerstone of our democracy.
And personally, I harbored great anguish as I wondered if the First Amendment rights of freedom of speech, assembly and assembly in government to seek redress for grievances were too protected that day.
There is a point when the protected protest ends and the violence begins; the former enjoys constitutional protection while the latter does not. Even in the first case, there are limits: the government can restrict the assembly by employing limited “time, place and manner” restrictions that still allow the assembly to take place. He can even end protests when faced with immediate danger that otherwise cannot be avoided. In each case, the onus is on the government to justify any restrictions.
But after two years of high-profile protests that sometimes included riots, looting and property damage, is there room for maneuver in drawing those lines, especially when law enforcement can and should intervene?
For example, should access to the Capitol grounds be more limited overall, as is the case across the street at the Supreme Court? More broadly: should our vision of an “immediate danger” to public safety change given these violent protests and the speed with which they occur?
After a year of internal calculation, my answer to all these questions remains a categorical “NO”.
The First Amendment only allows clearly defined and limited regulation of speech for one reason: No matter where the lines are drawn, there will be attempts by government officials to override.
Allowing regulation of speech below the standard of “inciting imminent illegal action” may prevent violence, but it will surely censor protected speech as well. This is especially true for those traditionally lacking in power, such as minority groups and marginal voices who often rely on a strong First Amendment to express their distinct views and for whom social media can be a great amplifier. As Freedom Forum member Charles Haynes recently told me, “Freedom of assembly means nothing if you cannot practice it because of your race. “
Rather, the answer is to ensure that adequate law enforcement is present and to understand that their explicit goal is to protect the right to assembly first and foremost. They must be trained to recognize danger signs and to act quickly and in a targeted manner in the event of violence or clearly illegal and silent behavior. And those arrested for violent crimes should be punished with all the rigor of the law. However, all execution measures should take place after the end of the protest and the start of the violence.
Ben Franklin said: “Those who would give up essential freedom, to buy a little temporary security, deserve neither freedom nor security. Words to take heed as we restore our core values.
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Kevin Goldberg is a Freedom Forum First Amendment Specialist.