Perspective: The verdict is in – but for protest rights, the jury remains ‘out’

The verdict is in. But the jury is still out in so many ways related to First Amendment freedoms.

A Minneapolis jury Tuesday convicted former police officer Derek Chauvin of all charges – two murder counts and manslaughter – in the 2020 death of George Floyd.

By the time the jury’s decision was announced, hundreds of demonstrators had gathered outside the Hennepin County Courthouse. Another group assembled at what is now known as George Floyd Square near the Cup Foods store where Floyd died last Memorial Day.

The Chauvin decision was a watershed moment in the ongoing reckoning over police mistreatment of people of color. But during the three weeks of Chauvin’s trial, three more people of color were killed by police  ̶  one man, just miles from the place where Floyd died.

The outpouring of protest over these deaths has led to a backlash over how the nation uses its First Amendment rights to talk with each other about problems facing the nation.

  • The April 11 death of 20-year-old Daunte Wright sparked protests in Brooklyn Center, a Minneapolis suburb. Part of the police response was to harass and assault journalists reporting those events.
  • Around the country, heavily armed police and National Guard units were deployed as authorities and citizens alike prepared for violence following the verdict.
  • Despite the clear evidence that most protests in recent years – whether supporting Black Lives Matter or in opposition to COVID-19 restrictions – were peaceful petitions, more than 40 states are in the process of enacting draconian restrictions aimed at limiting public protest.

In that very real way, the national jury remains “out” on how our First Amendment freedoms will play out in coming years.

Just this week, Florida Gov. Ron DeSantis signed into law what he called the “strongest anti-rioting, pro-law enforcement measure in the country” but one that critics say infringes on First Amendment rights.

The Combating Public Disorder law brings new protections for police officers, but also allows authorities to hold protesters until their first court appearance – preventing them from immediately posting bail, a feature of many bills now under consideration nationwide. Critics say it will permit police to chill protests with mass arrests.

The Florida law increases penalties for property damage and creates new charges for “mob intimidation” and doxxing – when someone posts personal information about another for the purpose of intimidation. Violators could now face up to 10 years in prison for damaging memorials or historic structures, such as Confederate monuments.

Still, First Amendment freedoms are providing citizens with tools to defend themselves and call for justice. Free press and free speech rights protected a critical element in the Chauvin trial: Cell phone videos taken by multiple passers-by of the 9 minutes and 29 seconds during which Chauvin pressed his knee against Floyd’s neck while he was restrained and face-down on the pavement.

The impact of that right to record police has played out many times elsewhere. Just days after Floyd’s death, Buffalo police knocked down 75-year-old protester Martin Gugino — and a public radio station journalist captured video of the assault, enraging people worldwide. Thirty years ago, a Los Angeles plumber aimed a video camera from his apartment balcony to document four police officers beating a defenseless Rodney King.

Minutes after the Floyd verdict was read to the courtroom, Minnesota attorney general Keith Ellison hailed citizens and citizen journalists for their “simple, but profound acts of courage. They told the truth about what they saw.”

Among the brave: 17-year-old Darnella Frazier, who was walking by with her 9-year-old cousin when she used her cellphone to capture Chauvin kneeling on Floyd’s neck. She posted the video on Facebook, where the world witnessed George Floyd’s death.

Almost unnoted among larger factors: The world could see the trial “live” – adding a measure of credibility to a system all-too-often suspect in its treatment of people of color.

Americans historically have taken to the streets to protest when they felt government or society at large did not hear them – or was ignoring their “petition for a redress of grievances.”

The First Amendment does not protect violence in support of that call. But the moves in many states to restrict, restrain or silence protests in the name of preventing violence can easily be abused to chill movements that in the past have made us a fairer, more just nation.

From suffragettes marching for women’s rights to civil rights protests for racial justice to the citizen video in the Chauvin trial, we see the wisdom of the nation’s founders in protecting our core freedoms as a means of self-examination and self-correction.

All too many issues remain about police conduct and racial justice. The nation is using its core freedoms to talk to itself about those challenges and more.
What remains to be seen is whether the nation, finally, will listen.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at [email protected], or follow him on Twitter at @genefac.

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