FirstFive_1.05.22

When did the Jan. 6 insurrection move past the First Amendment?

The Jan. 6 insurrection started as a rally protected by the First Amendment, but within hours moved outside its protections.

The First Amendment guarantees our rights to freedom of speech, peaceful assembly and petition — the right to ask the government for changes. It protects the ability to protest in public spaces like streets, sidewalks, parks and such — within reasonable rules regarding the time, place and manner of such protests. It does not protect criminal acts like trespass or assault.

Using videos, time markers and details from exhaustive timelines researched by The Washington Post and The New York Times, let’s consider the “rules of the road” with traffic signals showing when actions of participants that day were:

🟢 Green: protected by the First Amendment.
🟡 Yellow: caution, those 45 words might not apply.
🔴 Red: no First Amendment protection.

We’ll start our First Amendment analysis on the date first noted in the Post’s timeline:

Dec. 19: President plans a protest

Then-president Donald J. Trump asks supporters nationwide to come to Washington, D.C., on Jan. 6 for a “Big Protest” as Congress was to count electoral college votes confirming Joseph R. Biden’s election as the next president.

🟢  Green light: Political rallies and speech have the highest First Amendment protection. The views and content of such speech are not subject to government approval or penalty.

Jan. 4: Protest permitted

The National Park Service OKs a request from the groups organizing the Jan. 6 rally on the National Mall to increase their expected number of participants from 5,000 to 30,000 people.

🟢  Green light: Permits for rallies follow standard “time, place and manner” guidelines permitted under the First Amendment. They are reasonable rules that are designed to protect public safety and order. They are what the law calls content and viewpoint neutral — not based on the political views of the organizers or what they will say.

Watch: When and how free speech can be limited

Jan. 5: D.C. mayor prepares to protect protest

Washington, D.C., Mayor Muriel Bowser asks that federal law enforcement officials do not independently patrol city streets and states that the Metropolitan Police Department is “prepared for this week’s First Amendment activities.”

🟢  Green light: The mayor asks federal officials not to repeat earlier law enforcement actions that appeared aimed only at Trump critics. That approach runs counter to the First Amendment protection for free speech, which should apply regardless of who is speaking and what they are saying. Bowser also notes D.C. police are aware the planned rally is protected by the First Amendment.

Later on Jan. 5: FBI monitors online threats

The FBI finds that extremists from at least four states are preparing to travel to Washington to commit violence and “war,” according to an internal document reviewed by the Post. An online conversation monitored by the FBI contains this chilling paragraph:

“Congress needs to hear glass breaking, doors being kicked in, and blood from their BLM and antifa slave soldiers being spilled. Get violent. Stop calling this a march, or rally, or a protest. Go there ready for war. We get our President or we die. NOTHING else will achieve this goal.”

🟢  Green light, probably: Even threats of violence such as this lack essential elements to lose free speech protection. To be an unprotected “true threat,” it must be directed at a specific person or group and be imminent. This threat might well be defended as neither specific nor imminent enough to be punishable as a true threat, since the comment was posted at least a full day before the mob overran police and entered the Capitol.

In this analysis, it’s important to note that the “traffic cop” at our fictional intersection is still investigating. The U.S. House Select Committee on the Jan. 6 attack is subpoenaing witnesses and gathering evidence. We now know the Jan. 6 insurrection was the result of decisions, emotions and actions that took root weeks and months before the attack.

Jan. 6, about 11 a.m.: Protesters begin to gather, police prepare

Two hundred to 300 protesters arrive at the Capitol area. City officials say they repeatedly are assured by police authorities that officers will observe First Amendment rights and have made necessary preparations for crowd control, public safety and to protect the now-off-limits grounds around the Capitol.

🟢  Green light: The normally publicly accessible grounds of Capitol Hill can be closed off without violating rights in the name of public safety, since police at this moment likely can demonstrate a need for such a move as necessary, temporary and reasonable to protect Congress. The closing must be enforced fairly and apply to all — not just, as one administration official suggested, in a recently disclosed email, “to protect the Trump people.” While police and other officials express concern as more people gather near the Capitol, without clear signs of wrongdoing, those protesters likely still have a First Amendment right to assemble. The areas outside the actual U.S. Capitol grounds are what the law calls a “traditional public forum” for First Amendment expressive conduct such as protest marches and gatherings.

11:57 a.m.: Trump speaks at White House rally

Trump begins speaking at a rally near the White House, about 10 blocks from the Capitol, and tells the crowd: “They rigged an election, they rigged it like they’ve never rigged an election before … All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats. … We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved.”

🟢  Green light: While Trump’s election claims repeatedly fall short in multiple court cases, the First Amendment has no “truth” requirement — and the protection for such political speech stands on the firmest free speech grounds. In a 1964 case involving freedom of the press, the U.S. Supreme Court held that we have “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Perspective: Jan. 6 changed our country but shouldn’t change our First Amendment values

Between 12:15 and 12:45 p.m.: Capitol crowd builds

With Trump still speaking, law enforcement and media report growing, increasingly agitated crowds arriving at the Capitol grounds, some dressed in what resembles military or police “riot gear.” Verbal confrontations with police begin.

🟡  Yellow light: As this crowd builds, it raises the prospect of “imminent lawless action” — a standard that removes some First Amendment protections, set out in a 1969 U.S. Supreme Court decision. Still, no criminal acts have yet been committed. In that same decision, the justices held that even speech advocating use of force or violating laws is protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

More: The First Amendment right to protest has limits

12:49 p.m.: Crowd pushes past Capitol barriers

Some in front of the large group near the reflecting pool pick up a metal barrier and push it into two officers. A crowd begins to press onto the restricted Capitol grounds, confronting overwhelmed officers. Some attack television news crews and photographers. As Vice President Michael Pence entered the House chamber to preside over the electoral count at 12:59 p.m., Capitol Police Chief Steven Sund broadcasts that he is “watching my people getting slammed.” Within minutes, hundreds of demonstrators breach low metal barriers, taunting and manhandling police, breaking windows and attempting to force open locked doors.

🔴  Red light: What had been protected, demonstrative speech has just moved into a clear zone of unprotected conduct — criminal trespass and assault. Whether it’s a march through the streets that spills onto private property, or onto the steps of the U.S. Capitol, there is no First Amendment protection against trespass, violating police lines or invading the building. Some demonstrators will proclaim that as taxpayers or citizens, the Capitol and its grounds belong to the people. In the 60-plus convictions since the insurrection, no such claims have been upheld. Police may enforce reasonable restrictions, and make arrests for violations of those restrictions, as long as those arrests are not spurred by objections to what protesters are saying.

Fighting Words: Under a still-evolving doctrine known as “fighting words,” first set out in 1942, while police are expected to be more resistant than the average person, our speech can lose First Amendment protection when our words “by their very utterance … tend to incite an immediate breach of the peace.”

1:10 p.m.: Trump speech concludes

Nearing the end of his speech, Trump says “we’re going to walk down” to the Capitol, where Republicans must “fight.” Trump says he will be with the crowd. “We’re going to the Capitol,” he says. “We’re going to try and give them the kind of pride and boldness that they need to take back our country” and that “if you don’t fight like hell, you’re not going to have a country anymore.”

🟢  Green light: The U.S. House impeached President Trump for “incitement of insurrection,” saying he encouraged, and should have foreseen, the lawless actions at the Capitol. But a standard in law set out by the Supreme Court, called the “Brandenburg Test,” removes First Amendment protection for speech only when there is an intent to cause imminent, likely violence, which Trump’s lawyers denied at the trial in which the Senate fell short of votes to convict.

About 1:15 p.m. through the afternoon: Crowd breaks into the Capitol

Demonstrators push their way into the Capitol, storming through hallways and stairwells. As Pence and Senate and House leaders are rushed from their chambers, some insurrectionists chant that Speaker of the House Nancy Pelosi and Pence should be hanged. As the crowd attempts to enter the House chamber, a protester is shot by police and killed. Members of the mob enter House and Senate chambers and offices, some claiming to be rummaging through desks and files looking for evidence of wrongdoing.

🔴  Red light: While our nation’s history is replete with examples of public protest having a strong role in changing the course of public policy or forcing the nation to confront injustice, there is no First Amendment right to violence or criminal conduct. When we believe a law or police order is illegal or immoral, the freedoms of speech, assembly and petition protect our rights to speak out, gather peaceably with others of like minds and to demand change. But violating laws has legal consequences. Civil rights protesters of the 1950s and ’60s, for example, were not insulated from arrests and convictions for breaking what they considered immoral and unjust laws — though their arrests touched the conscience of the nation.

8:06 p.m.: Congress reconvenes and police investigations begin

Congress reconvenes to declare Biden the winner of the election and the next president of the United States. A combination of military troops, Maryland and Virginia state police, and federal and D.C. police have sealed off the Capitol grounds and streets near Capitol Hill. Insurrectionists have scattered. In the ensuing days and weeks, as police conduct investigations, they review video and posts online that help identify those who will face changes ranging from trespass to attacking police.

🟡  Yellow light: Social media posts from the Capitol — some from inside offices or in chambers — by insurrectionists themselves are enough evidence to bring early arrests. But subsequent reports of cell phone intercepts and other intelligence gathering raise long-standing First Amendment concerns about privacy and the extent of government surveillance.

In the wake of Jan. 6, several state legislatures consider or enact laws aimed at stifling public protests — most have yet to fully face challenges in court.

We have taken to the streets and public spaces through this nation’s history to protest all manner of government policies and actions, and to challenge social standards and mores such officials and laws support.

To be sure, some of those protests and challenges have been tainted by violence, injury and deaths. But rarely, if ever, have our First Amendment freedoms been tested so severely in such a short span of time and in such a basic way.

Even a year later, the echoes of the insurrection still resound through the 45 words — and the meaning and the future – of the First Amendment.

Gene Policinski, Freedom Forum senior fellow for the First Amendment. You can reach Policinski at [email protected]

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