With rising calls for violence, where’s the line between protected assembly and prohibited violence?

With rising calls for violence, where’s the line between protected assembly and prohibited violence?

Is Saying “No Justice, No Peace” Protected By the First Amendment?

Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the government for a redress of grievances.[1]

On July 27, Dirk DeJonge, an avowed Communist, spoke at a public meeting held at 68 Southwest Alder Street in Portland, Oregon.  The meeting was called to protest against illegal raids and shootings by Portland police. DeJonge urged the 300 attendees to resist the police.

While DeJonge was speaking, the Portland Police broke into the meeting hall, and arrested DeJonge and several others. DeJonge and others were charged with “unlawfully and feloniously presid[ing] at, conduct[ing], and assist[ing] in conducting an assemblage of persons” which advocated “criminal syndicalism and sabotage.” Criminal syndicalism” was described as “the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution.”

The year was 1934. With some American cities exploding with riots and violence, and federal, state and local law enforcement struggling to permit free expression while preventing murders and property damage, was this the law they should apply? The U.S. Supreme Court had upheld California’s criminal syndicalism law less than ten years before.[2]

The Portland convictions went to the Supreme Court, which struck down the conviction and the Oregon statute: “The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental. … The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.”[3]

What about the First Amendment’s limitation: “the right of the people peaceably to assemble”? Violence is never protected by the First Amendment, under any justification, even as a “political” act.

But a new report[4] finds that one-third of Americans would see violence as “justified” after the November elections “if the other side wins.” And protests across the country are increasingly violent, as protestors and counter-protestors share tactics, travel to join protests, and attack others.[5] Gabriella Coleman, an anthropologist at McGill University who specializes in online activism and social movements, told the Washington Post that the current protests are moving “the needle of what is considered a peaceful protest.”[6]

So, where’s the First Amendment line between peaceable and violent? Under both modern and traditional jurisprudence, that line is very tolerant, but fairly-well established. Protestors can advocate violence, but not incite, organize, direct, support, or engage in it. “The mere abstract teaching of the moral propriety … [of] a resort to force and violence[] is not the same as preparing a group for violent action and steeling it to such action.”[7]

 In 1969, the Supreme Court protected a Ku Klux Klan leader who was charged under Ohio’s criminal syndicalism statute for holding a meeting at which firearms were displayed, advocating a march on Congress and state capitols, and saying “it’s possible that there might have to be some revengeance taken.”[8] In 1973, the Court protected a college student who said “we’ll take the f__king street again”, because it “amounted to nothing more than advocacy of illegal action at some indefinite future time.”[9]

And in 1982, the Court found that Charles Evers’ threats of violence against those who refused to boycott white businesses was protected speech: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”[10]

Just saying “No Justice, No Peace,” seems to fit comfortably within the American tradition of forceful advocacy. It takes a further step to break the “peaceable” nature of an assembly or meeting, such as organizing for, inciting, preparing for, or supporting violence itself. “Tear down the gates”? Protected. “Here’s a crowbar”? Not protected. Stockpiling weapons or fireworks for “defensive” purposes? Not protected, and an indicator of organizing violence.

It’s the close connection between words and violent (or threatening) deeds that removes the speech or conduct from First Amendment protection. “We think speech tending to organize a riot might thus include communicating with prospective participants about logistics, arranging travel accommodations, or overseeing efforts to obtain weapons needed to carry out the planned violence.”[11]

Stated slightly differently, in the service of organizing violence, the First Amendment does not protect “concrete aid. For, by the time speech reaches the point of organizing a riot, it has crossed the line dividing abstract idea from material reality, even if its components must still be brought together, coordinated, arranged, or otherwise structured into form. In other words, speech tending to organize a riot serves not to persuade others to engage in a hypothetical riot, but rather to facilitate the occurrence of a riot that has already begun to take shape.”[12]

So what about “No Justice, No Peace”? Without more, protected. What about those rapidly-evolving additions such as “Take it to the streets!” Again, without more, protected. Writing it on Facebook? Protected.

Written on a Molotov cocktail? Not protected.


[1] U.S. Const., amend. I.

[2] Whitney v. California, 274 U. S. 357, 371 (1927) (“a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question.”).

[3] DeJonge v. Oregon, 299 U.S. 353, 364 (1937).

[4] Larry Diamond, Lee Drutman, Tod Lindberg, Nathan P. Kalmoe, Lilliana Mason “Americans Increasingly Believe Violence is Justified if the Other Side Wins,” Politico, October 1, 2020, https://www.politico.com/news/magazine/2020/10/01/political-violence-424157.

[5] Marissa J. Lang, “After 100 days of demonstrations, more radical protest tactics are likely here to stay,” The Washington Post, Sept. 5, 2020, https://www.washingtonpost.com/local/protest-tactics-dc/2020/09/04/81a82cfa-ee74-11ea-99a1-71343d03bc29_story.html.

[6] Id.

[7] Brandenburg, v. Ohio, 395 U.S. 444, 446 (1969).

[8] Brandenburg, 395 U.S. at 449.

[9] Hess v. Indiana, 414 U.S. 105, 108 (1973).

[10] NAACP v. Claiborne Hardware, 415 U.S. 886, 928 (1982).

[11] U.S. v. Miselis, U.S. Ct of Appeals for the Fourth Cir., No. 19-4550, 4551, Aug. 24, 2020, slip op. at 26, https://www.politico.com/f/?id=00000174-21ba-d006-a7f4-e1bf41e80000.

[12] Miselis, slip op. at 26.

Should Campaign Consultants and Public Opinion Polls Decide Which Political Speech Receives First Amendment Protection?

Should Campaign Consultants and Public Opinion Polls Decide Which Political Speech Receives First Amendment Protection?

A Review of “Campaign Finance and American Democracy” by Professors David Primo and Jeffrey Milyo

Sometimes it’s good to look at new books that could and should become more important in the future. Like a new book on the “appearance of corruption,” which is the legal construct justifying campaign finance regulation, and should not be. The idea is that campaign contributions cause a “trust deficit” undercutting faith in government; the new book says the evidence shows they don’t. My book review just went up on the Institute for Free Speech blog
This book, by Professors David Primo and Jeffrey Milyo, isn’t available from Amazon yet, but I did buy an electronic version (pre-ordered in early July) directly from the University of Chicago Press. This paragraph pretty much sums it up:

The bottom line is this: we find that there simply is no meaningful relationship between trust in state government and state campaign finance laws during this time period. … we want to be clear that this is a major finding running counter to forty years of jurisprudence, as well as reformers’ promises and scholarly claims that reform is critical to maintaining or restoring citizens’ faith in the integrity of democracy.

[Page 137 of the book]

“One possibility for these findings is that the promises associated with reforms like Clean Elections are illusory and far exceed the realities of what changes in campaign finance law can achieve. This failure to bring about meaningful change in state politics may then leave supporters (in the case of Clean Elections, Democrats) even more disillusioned with the politics in their state.” 
In other words, campaign finance reform not only doesn’t “cure” the problem of confidence in government, it actually makes it worse. Campaign Finance Reform has been weaponized and is often used by opponents to harass. And that very fact seems to be why support for “reform” is increasing. Not only is the First Amendment negated by opinion polling, but people increasingly support Campaign Finance Reform precisely because it is an easy-to-wield weapon against political opponents. Scary!

Allen Dickerson Nominated for Federal Election Commission

Allen Dickerson Nominated for Federal Election Commission

Today President Trump nominated Allen Dickerson to be a Commissioner on the Federal Election Commission. Dickerson is currently Legal Director of the Institute for Free Speech in Washington, D.C., and is one of the most active and thoughtful First Amendment litigators. He is a long-time member of the First Tuesday Lunch Group, and was co-counsel on a recent Supreme Court brief for the Public Policy Legal Institute and IFS: 16-1436 Public Policy Legal Institute tsac

Both the White House and IFS released statements:

Today, President Donald J. Trump announced his intent to nominate the following individuals to key positions in his Administration:

Allen Dickerson, of the District of Columbia, to be a Member of the Federal Election Commission.

Allen Dickerson is currently the Legal Director at the Institute for Free Speech, where he leads a nationwide First Amendment litigation practice. Previously, he was an Associate with Kirkland & Ellis, LLP. He also serves as Captain in the Judge Advocate General’s Corps, United States Army Reserve.

Mr. Dickerson received his undergraduate degree from Yale College and his J.D. from New York University School of Law.

Institute for Free Speech press statement:

“The White House could not have found a more qualified nominee than Allen Dickerson. He will bring years of experience, expertise, and a strong commitment to the rule of law to the Commission,” said Institute for Free Speech Chairman and former Federal Election Commission Chair Bradley A. Smith. “He is a lawyer’s lawyer and his temperament is ideally suited for this position.”

During his time at the Institute for Free Speech, Dickerson spearheaded the group’s litigation efforts and engagement with regulatory agencies. He testified numerous times before Congress, state legislatures, and the FEC. Dickerson is also a highly sought-out public speaker on campaign finance law and has authored several law review articles on the topic.

“It is a tremendous honor to be considered for the FEC. I am grateful for the president’s confidence, and hope to have the opportunity to serve the American people in this important role,” said Dickerson.

Also today, FEC Commissioner Caroline Hunter announced that she would be resigning from the Commission, effective July 3. If Dickerson is not confirmed before Hunter leaves, the FEC will again be without a quorum, as it had been for nine months until recently.

UPDATES:

Matt Petersen, former FEC Chair:

 “Allen will be an outstanding addition to the FEC. As one of the country’s preeminent free speech litigators, Allen is a leading expert on how campaign finance law intersects with free speech. He is also a true gentleman. Allen’s exceptional background and experience, along with his even-keeled temperament, will allow him to be a leader on the Commission for many years to come.”

Lee Goodman, former FEC Chair and member of the First Tuesday Lunch Group:

“Allen has a brilliant legal mind and years of experience identifying the proper balance between regulation and free speech. He will be a formidable commissioner. The team of Trey Trainor and Allen Dickerson will shore up the Republican side of the commission. Now we need one additional Republican commissioner and three new Democratic commissioners to put the agency on track.”

David Warrington, President, Republican National Lawyers Association:

“Allen is a brilliant legal mind committed to the rule of law and protecting the rights of all Americans to participate in the political process. In addition to his military service, this is another opportunity for Allen to serve his country in this important capacity. He will be an extremely valuable addition to the Federal Election Commission.”

Center for Responsive Politics:

With FEC again defanged, Trump’s latest nominee likely to face opposition

Trump’s FEC nominee to replace Hunter will likely draw even stronger opposition. …

Dickerson cheered the Supreme Court’s 2010 Citizens United v. FEC decision that unleashed nearly $1 billion in dark money into federal elections over the last decade, arguing that the ruling greatly expanded Americans’ freedom to speak on political issues. Since then, Dickerson has led the Institute for Free Speech’s legal challenges against laws and regulations that would force politically active nonprofits to disclose their donors.

Formerly the Center for Competitive Politics, the Institute for Free Speech opposed the DISCLOSE Act, Democrats’ attempt to crack down on dark money spending following the Supreme Court’s landmark ruling. Dickerson argued that the bill chilled free speech rights of nonprofits to advocate on political issues. Senate Republicans successfully blocked the legislation.

Dickerson supported reversing a district court decision that unsuccessfully attempted to reveal donors to dark money groups. He led a lawsuit against California over its law that required nonprofits to disclose names of donors to the state. He also supported a lawsuit that challenged the legality of Alaska’s relatively low contribution limits.

Wiley, Rein:

The White House’s decision to nominate Dickerson solo, without pairing him with a Democratic nominee, is a significant development. With Hunter’s departure, the six-member Commission is down to three commissioners. Four commissioners are required to make a quorum that can conduct agency business. The three remaining commissioners are its new Chairman, Trey Trainor, a Republican, and incumbent commissioners Ellen Weintraub, a Democrat, and Steven Walther, an independent who traditionally has voted with the Democrats. Weintraub has served 18 years, since 2002, while Walther has served since 2006. Both serve long past their original six-year terms.

That composition leaves the White House and Senate some important decisions about how to remake the Commission. The White House could nominate five new commissioners, three Democrats and two Republicans, to join Chair Trainor, who joined the Commission this month. Alternatively, the White House could nominate one Democrat to fill the empty Democratic seat and two new Republicans to fill the two empty Republican seats. The White House’s announcement that it is nominating only Dickerson at this time indicates an incremental approach. Dickerson would join Trainor to fill two Republican seats, while Weintraub and Walther would continue serving past their terms in Democratic seats. The quorum would be restored with the bare minimum of four commissioners. Whether the Senate agrees with this approach remains to be determined.

For the foreseeable future, the agency once again will be without a quorum for at least some period of time this summer. The agency can resume regulatory business once Dickerson is formally nominated, confirmed by the Senate, and sworn into a seat. That process may take time.

ABC News:

Trevor Potter, president of Washington-based nonpartisan ethics group Campaign Legal Center and a former Republican chair of the FEC, called for a prompt replacement of Hunter to restore the quorum, saying her resignation has left “democratic elections with significantly less government oversight.”

 

Treasury and IRS issue final regulations to protect donor privacy

Treasury and IRS issue final regulations to protect donor privacy

On May 26, 2020, the Dept. of the Treasury and Internal Revenue Service issued a final version of proposed regulations protecting donor privacy. Rejecting pleas by some organizations that donors must be revealed, the explanation of the new final regulations said:

The Treasury Department and the IRS have concluded that the IRS does not need the names and addresses of substantial contributors to tax-exempt organizations not described in section 501(c)(3) to be reported annually on Schedule B of Form 990 or Form 990-EZ in order to administer the internal revenue laws. In light of the risks and burden associated with requiring the annual reporting of such information, this Treasury Decision revises the regulations under section 6033 to remove the general requirement for tax-exempt organizations not described in sections 501(c)(3) or 527 to report annually the names and addresses of substantial contributors.

The IRS had proposed regulations clarifying that tax-exempt organizations other than 501(c)(3) charities and 527 political organizations did not have to list donor names and addresses on Schedule B to IRS Form 990 annual reports. More than 8,000 comments were received on the proposed donor privacy regulations, the vast majority of which supported the IRS’s efforts to protect donors. In February, the IRS held a public hearing at which most commenters also supported the proposed regulations.

The Public Policy Legal Institute filed extensive comments supporting the proposed regulations, giving the history of the statutory language and prior IRS efforts to protect donors. The PPLI comments can be found here: Sched B donor disclosure comments final

The final version of the new regulations did not vary significantly from the proposed regulations, but included several of the additional features proposed by the PPLI’s comments.

One of the most important of the additional features requested by PPLI was to clearly instruct states and local governments of the strict limitations on the use of IRS information. The final regulations did just that:

     The Treasury Department and the IRS reiterate that the [Internal Revenue] Code limits the purposes for which states may use returns or return information obtained from the IRS. When states receive returns or return information under section  6103(d), the use of that information is limited to the administration of state tax laws. When states receive returns or return information under section 6104(c), the use of that information is limited by statute to administering state laws relating to the solicitation or administration of charitable funds or charitable assets of such organizations. Use of returns or return information received from the IRS under these sections for purposes other than those listed above (for example, for the enforcement of campaign finance laws or consumer protection laws) is not consistent with states’ authorized use under sections 6103(d) and 6104(c). While some states may use name and address information for those authorized purposes, the divergent comments from state attorneys general indicate that the desire to obtain such information, and the purpose for doing so, may differ from state to state. To the extent that any state determines that the burdens of collecting and maintaining such information are justified by its own needs, such a state is free to require reporting of such information to the state and to maintain the information at the state’s own expense.