Free speech, protests, and political violence

A riot overtakes the Capitol Building in D.C. Local political officials get threatened by violent imagery. Lawbreakers in summer protests go uncharged. In an exclusive interview with Opportunity Now, Tony Francois, senior attorney at the Pacific Legal Foundation and longtime Californian, unpacks the legal and ethical issues that separate legitimate free speech from incitements to violence and mayhem.

Opportunity Now: Let's start with first principles; How do First Amendment rights protect political speech?

Tony Francois: The First Amendment guarantees freedom of speech, the press, the right to assemble and petition government. We are all allowed to use the soapbox to mobilize public opinion and get people to change their minds.

A more classic view of free speech used to focus on expression: the ability to circulate pamphlets, give speeches, and publish newspapers and broadcast. But even in that older framework there are still things where the activity is what conveys the message. Like with the Civil Rights protestors, it wasn't just the speech, it was also sitting at the lunch counter or on the bus--recognizing that they would be met with unjust responses from public authorities. Even then, the medium was the message, as the saying goes.
It is also worth observing that the Civil Rights activity was broadly non-violent: the protestors said and did their piece, and then prepared for unjust violence to be enforced against them. That, too, was part of the message.

This was before the Internet and social media. Now, of course, it's commonplace for people to get doxxed online, making them uncomfortable, targets of criticism and home vandalism, and of course potentially losing their jobs.

ON: But we can't say anything we want anywhere we like. Where are the guardrails?

TF: There are limits: federal courts for a long time have recognized the authority of public officials to impose reasonable time, place, and manner restrictions on the exercise of free speech in public places.. For example, if you are going to organize a protest march on a city street, you need a parade permit in many cities. Within that context, political speech is fully allowed, but you can't repurpose those areas so they become the exclusive domain of the protestors. You can have your say but you cannot monopolize public space. Cities may also charge organizers fees for police overtime, as they need to balance free speech with the cost to the city.

ON: What about sit-ins or the Occupy movement? Or the Autonomous Zones in Seattle? Or the Trump protestors taking over the Capitol? Are they of a family?

TF: Let's start with Occupy. If Occupy wants to have a day-long event at a park, there is probably no valid reason for the local government to prevent them from doing that. But there are valid reasons to limit the duration and nature of the event because parks are public areas and people have a right to use them. Occupy turning the park into a permanent encampment goes beyond what they would be able to do under reasonable time/place/manner restrictions. Most jurisdictions tolerated the Occupy movement because they didn't want to undergo the political fallout of enforcing their time/place/manner restrictions.
I think historically, District Attorneys have developed a lot of tolerance for boisterous street protests. Most of the time it's just energetic, and the energy doesn't get extended to property and persons. Most of the time they're not breaking things and beating people up.

ON: But Occupy seems like a long time ago. Have the goalposts moved since then?

TF: Antifa breaks things and beats people up. They suppress independent and mainstream journalists. They hide, they harass, they intimidate. They assault and trespass and damage property. It's brazen: they don't claim it's First Amendment, but they seem to understand they will get a pass from the DA's. Many DA's still are not prepared to prosecute for those infractions, even though it's clear that those activities are not part of the free speech franchise, they are not in a protected zone. This problem has been exacerbated by the fecklessness of many of the institutions that have been targeted--they appear intimidated also.

ON: Do you see this as on a spectrum with the Capitol riot?

TF: There are certain similarities, for sure, especially between the Occupy movement, the Seattle Autonomous Zone, and the Capitol takeover. In the Occupy encampments, there was significant reporting of violent crime, including sexual assault, as well as property damage done to local businesses and buildings on streets adjacent to the park. In Seattle, the Capitol Hill Autonomous Zone (CHAZ) took it a step further: they not only camped out, they actually set up their own microstate built around a police precinct station they had attacked and chased the police out of. It's a progression:. It goes from the public having to tolerate Occupy's use of the park to the public being occupied by the CHAZZ. It was widely reported there was much violent crime inside the CHAZ, including reports of homicides.

ON: And then you have violent protestors taking over the Capitol building while they're counting votes.

TF: I harbor no sympathy for anybody who engaged in violence, and all political violence warrants investigation and prosecution where crimes were committed.

It's obvious that clearly a large number of people came into the Capitol to disrupt business and intimidate legislators who were tallying the electoral votes. People are allowed to be disgruntled at the outcome of an election, but what happened at the Capitol was something else altogether. They disrupted the electoral vote count. They put congressional leadership in danger. A woman was shot and killed. A law enforcement officer was attacked and later died. It's inarguable that what happened was political violence. And surely the people who are elected to make legislative decisions have to be free to make them without coercion. So the intimidation of public officials with political violence is, in a republic, intolerable.

The public's right to access the Capitol building, in any case, is to make sure that the government's business is done in public, not in secret. So there are reasonable time/place/manner restrictions about who can come in and when and what they can do there.

Those restrictions should be more strict in the Capitol building itself than outside on the plaza. Because on the plaza, it makes more sense to have boisterous free speech protests with noise and signs and yelling, because people are trying to get people to rethink their position. But there are practical limits to how far we can let that go. That's why nobody is surprised when protestors who chant at and disrupt a government meeting inside the Capitol are quickly escorted out the door.

ON: Even though this violence comes from both ends of the political spectrum, it seems like the grammar of their logic is kind of the same.

TF: It's the same principle on the Capitol as it is with the vandalization of Mayor Wheeler's (Portland) and Mayor Liccardo's home.

The fact that many people stormed the Capitol, and many were involved in politically violent protests with antifa over the summer should give us pause. While it's easy to say that they are on opposite ends of the political spectrum, the fact is they are similar in other ways: they are a bunch of violent malcontents who are disaffected and lack confidence in the American government to solve problems through normal process and channels. The way many cities normalized violence over the summer was a mistake. We don't need to sympathize with their alienation, but it warrants our understanding if we want this to stop and have people recover their senses and get back to a reasonable approach to solving problems. This is true of both the right and the left.

ON: Let's shift to local issues: In San Jose, Mayor Liccardo has asked Twitter to take down posts from some extreme local activists that posted his address next to some highly suggestive, violent imagery. Do the same principles apply?

TF: It's a reasonable principle to say that everyone should allow public officials, at the end of the public workday, to become private citizens. This depersonalizes the authority they have, which is appropriate. And it's nobody's business to punish neighbors because a public official lives down the street. .

That is the principle behind this state law that allows a public official to request websites to take down their addresses--it's a California Government Code Section 6254.21. It says if the website refuses to take down the official's address, the official can litigate. It should be noted though that a federal court in California declared this law unconstitutional in 2017.

But it's a funny thing: where Mayor Liccardo lives is no secret. You can probably find his home address online pretty easily with your favorite search engine. So it's a little different than protecting privacy, it's also disrupting activism that has violence associated with it.

So the problem isn't the address, really, it's the overt call for violence against the mayor that's the problem. Reading through the posters, anyone can see what they mean: images of Mussolini hanging from a meathook next to images of an assassinated official next to images of Liccardo's face with his eyes crossed out. In red. This is not subtle. It's possible that Liccardo's letter to Twitter may be more of an effort to elevate the issue at Twitter so they take a look at the imagery on the flyer.

The Supreme Court has held that fighting words and incitement to violence are not protected by the First Amendment, and people can be prosecuted for inciting violence. These principles are difficult to apply in practice, however. if Liccardo were an ordinary unknown citizen, it would be harder to interpret the flyers as a call for violence, because who would even know who he is or care? It's the fact that he is a public political figure that makes it an incitement to violence.

If I were being paid to advise the mayor I would tell him: just call it what it is--incitement to violence, not protected by the First Amendment, and call on the DA to prosecute.

ON; But why are these principles hard to apply in practice? The words and images in all these examples are pretty straightforward, aren't they?

TF: One of the reasons it's difficult to prosecute people for inciting violence is that our language culture is unraveling: finding a common meaning in language is increasingly tenuous. Language has less objective common meaning. There was a time when putting pictures of Liccardo up against Mussolini on a meathook, people would say, "We all know what that means and that's unacceptable." But now people will say it's a literary expression in the cause of social justice and lots of people will accept that. As a result, I think we can expect to see more and more examples of these pretty explicit invocations to violence and people will get away with it, and one of their excuses will be to throw the invocation of violence back on the accuser.

ON: I have seen that: where people accused of inciting violence say to the accuser: "You're the violent one if you see violence in this poster."

TF: It will be increasingly hard to get a jury of twelve people to agree on much of anything when it comes to language and imagery. As a result you wind up with an asymmetric conflict. The peddlers of violence will get more room to play and the public official will never simply say: this guy just called on people to kill me and that's not acceptable and somebody should prosecute or do something. The DA's won't act and I doubt the city officials of San Jose are going to dig in hard against a company like Twitter.

Ever since the Occupy movement, many public officials on both sides of the aisle have accepted a presumption that reasonable time/place/manner restrictions are inherently oppressive, when in fact they're just a fairminded way of ensuring that there is a level playing field for everybody to speak.

Every revolutionary knows that they need more than violent pressure, they need to manipulate the way people think. And the best way to do that is not to guarantee free speech, rather it's to create an intellectual and linguistic environment in which only your way of expressing ideas can be heard.

ON: A local political figure got a lot of heat for posting that a "Civil War" was starting at the Capitol. Is that violent speech?

TF: The Facebook posts illustrate what I said about the misuse of language - he says "civil war" in the post, but then assures everyone he doesn't mean, you know, "civil war." So we see this kind of passive aggressive misuse of language from different political factions, but they are both examples of inflammatory rhetoric used in an irresponsible way. It also matters that he is a political leader within the local party, because that indicates at least some level of influence with others who may follow. So it is similar in that respect as well to the organizer circulating the flyer with Mayor Liccardo's eyes crossed out.

On the other hand, I find the article disingenuous in implying throughout that the "civil war" guy is a public official, suggesting a greater level of offense than something coming from a private person. He is not a public official, he is a party leader. So the article is misleading in that respect.

A final observation is that we have been talking about the legal aspects of this kind of speech and conduct. But I think it is safe to say that many of these speakers and actors are intent on operating outside of our legal framework, and only secondarily dealing with legal rules where they face enforcement (which few of them are). This reflects a growing number of people (both on what we call the right and the left, but in some ways are closer to each other than the ideological labels would suggest) who are disaffected with our legal and political regime and alienated from it. They are increasingly acting outside of it.