With millions marching in Washington, D.C. and across the country for women’s issues, science, and action on climate change, Americans lately have rediscovered their rights of speech and assembly under the Constitution. But the social impact of those demonstrations, coming on the heels of last year’s protests against police violence, has spawned a backlash by the Republican Party to restrict and curtail those same rights, especially when corporate interests are being threatened. This effort, being waged almost surreptitiously by Republicans in state legislatures, received a clear signal of approval last week from the Trump administration and Attorney General Jeff Sessions.
The antipathy of this administration toward social protest was on display from Day One of its existence. Protesters against Trump’s policies were immediately and reflexively accused of being “paid” and therefore illegitimate. Literally within minutes of Trump’s inauguration, the White House website had already made its philosophy about protesters clear to any federal prosecutor who wanted to keep his job:
Within minutes of President Donald Trump being sworn in, the White House website had posted a note on law enforcement policy which included the line, “Our job is not to make life more comfortable for the rioter, the looter, or the violent disrupter.”
The results of this new “policy” were visible almost immediately:
Felony charges brought against more than 200 people on Inauguration Day, police and prosecutors in the District of Columbia are putting activists on notice that legal protections ingrained in the Constitution may not apply to them, according to legal experts.
This new era of law enforcement is affecting policing tactics beyond Washington. The harsh treatment of protesters in the District since Donald Trump assumed the presidency — with a large number of people who did not engage in violence facing decades in prison for simply taking part in a protest — lets law enforcement officials across the nation know that a tough-on-dissent policy is acceptable, the experts said.
The charges against the inauguration protesters were brought by the District of Columbia’s federal prosecutor, Channing Phillips. What made these charges unique was that they were slapped not only on the people who actually caused property damage (and presented an actual danger), but those rounded up in the vicinity of these same people, a process called “kettling.” As a result, wholly innocent people who were simply marching in protest ended up facing the same penalties as those who sought to provoke a violent response. Those penalties extended to a maximum of 10 years in jail and a $25,000 fine.
In laying out its justification for these penalties, the D.C. prosecutor’s office arrest reports used identical language in describing the actions of both types of protesters. Protest observers that day also noted that the police acted with pepper spray and riot batons without providing any warning to the protesters, a breach from prior protocol. At least half a dozen journalists were among those “kettled” and charged with felonies. While the charges against the journalists were later dropped (because they had the institutional power of their organizations to defend them), even more harsh charges were eventually brought against the remaining 200 plus individuals arrested, raising the potential penalties against some to 75 years in prison. This “superseding Indictment,” and the ludicrously harsh penalties involved received only minimal coverage in the media.
In subsequent months a coordinated strategy by the administration and the GOP against those groups and individuals who might seek to thwart their interests has begun to emerge, with the clear intent of chilling peoples’ efforts to make their voices heard. This strategy originated with the concerted effort to criminalize African-Americans and Hispanics in the public mind after the Ferguson protests, an effort we saw from Trump himself during the campaign, and a meme pushed strongly by right-wing media, most noticeably by Fox News. The other groundwork setting the stage for restricting protest was the bogus contention that the nation’s police are somehow “under assault.”
Shortly after Trump took the oath of office on January 20, the official White House website published statements outlining the new president’s six top priorities, including one titled “Standing Up For Our Law Enforcement Community.” The White House page explaining this priority said Trump’s administration “will be a law-and-order administration,” committed to ending the “dangerous anti-police atmosphere in America.”
There is no “dangerous anti-police” atmosphere. Based on the FBI’s own data, violence against police during last year’s election campaign was at a 12-year low. The much-hyped “war on cops” was and is a colossal fraud, perpetrated by the conservative right to further their own goals. One such goal was to demonize minorities to inflame the Republican Party’s voting base. Another, subsidiary goal of was to paint the act of public protest—not just by non-white persons who find themselves targeted by race-based GOP policies (such as voter ID laws), but everyone else who might oppose those policies---as some sort of crimethought. Just as they had condemned the protesters in Ferguson, Missouri, and demonized the Black Lives Matter movement, Fox News served as the administration’s mouthpiece in condemning the national anti-Trump protests when they began in January. In effect, the ground was being laid by the right for a more cohesive strategy against all forms of protest.
When Attorney General Sessions last week issued a directive ordering U.S. attorneys to pursue the maximum penalty for criminal offenses, a directive that reversed in one stroke decades of well-considered law enforcement strategy, the reaction of the media was to focus on its implications to drug offenses. But the scope of Sessions’ order was much broader than that:
...Sessions instructed federal prosecutors nationwide to seek the strongest possible charges and sentences against defendants they target. “It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense,” he wrote. “This policy fully utilizes the tools Congress has given us.”
Jason Flores-Williams is an attorney representing three people arrested on Inauguration Day and currently being prosecuted by the District of Columbia prosecutor’s office.
The memo also aligns with how the Justice Department is ratcheting up its prosecution of protesters and could serve as a guide for how state and local jurisdictions treat expressions of dissent, according to Flores-Williams. “Under the Sessions DOJ, states are going to have carte blanche to pass whatever local ordinances they want to eliminate, outlaw, and make protests extremely difficult,” he told ThinkProgress.
Both Flores-Williams and Ria Thompson, Executive Vice-President of the National Lawyer’s Guild, were interviewed by ThinkProgress. They and others see this new federal policy trickling down to local law enforcement, particularly in the realm of anti-corporate protests against the fossil fuel industry. The heavy-handed treatment of the Dakota Access Pipeline protestors, and the rapid enactment by several states of punitive laws designed to deter similar protests against the oil and gas industry, by making it a crime to “impede or inhibit” the progress of corporate ventures, are the most recent examples of this. In North Dakota a bill was introduced this February essentially permitting protesters to be run over by drivers without fear of penalty. All of this legislation has been introduced by Republicans and treated with indifference or tacit approval by the Trump administration.
Broadly worded laws designed to deter peaceful protests (after all, who does not protest to “impede” or “inhibit” some action?) create a chilling effect and enforce a social obedience to authority borne of fear. That fear is naturally carried over by people contemplating other acts of dissent, no matter what issue is involved. One Republican state lawmaker in Pennsylvania, Scott Martin of Lancaster County, has introduced legislation that imposes potentially exorbitant fines on protesters, requiring them to pay for policing and other costs incurred in simply responding to or monitoring protests. Not coincidentally, a planned natural gas pipeline being constructed by the Atlantic Sunrise company has sparked opposition in Lancaster County, which includes Martin’s legislative district.
Flores-Williams says the states have taken their cue from the actions of the D.C. prosecutions, particularly the action of adding exorbitant new penalties after the fact to those arrested:
“Once that superseding indictment was issued, it was an historic crossroads moment,” Flores-Williams said. “If you’ve looked at what they’ve done, from the police all the way up to the prosecutor, this is a systematic attack on the First Amendment rights of these people at a time when the First Amendment couldn’t be more important.”
Of course, the erosion of Americans’ right to protest did not begin with the Trump administration. Rights of assembly and speech began being curtailed on a regular basis with the establishment of “free speech zones” designed to hem in protesters during the political parties’ national conventions, greatly expanded under the administration of George W. Bush. Protest “areas” where demonstrations are “permitted” are now accepted as a fact of life by the public. The appearance of police in grotesque riot gear completely out of proportion to the ”threat” allegedly presented by protesters has also been internalized and passively accepted by many Americans, as has the rampant use of Tasers and pepper spray.
As the Trump administration and its Republican enablers in the states embark on their authoritarian march against all forms of dissent, Americans must fight these efforts to curtail and eliminate their right to speak out, protest and peaceably assemble. These are more than just “rights guaranteed to us under the Constitution,” they are our birthright. And history shows that when these rights are relinquished, they never come back.
