Author: barnabyzall

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!

New Reporting Sheds Light on Chinese-American Cooperation in Fighting Coronavirus

Leaving aside the legal question of the federal government’s position on prosecuting Americans for believing foreign propaganda, new reporting shows that information-sharing can be beneficial, particularly in a period of intense international crisis.

And the underlying message bolsters the rationale for the First Amendment: government information control can be more dangerous than free expression. Especially in a time of crisis when information is at a premium.

Getting information out of China can often be difficult, but two invaluable sources of information are the South China Morning Post and the Wall Street Journal. Today found two articles of particular First Amendment interest:

The SCMP story, “China’s Centres for Disease Control should have power to warn public, says country’s leading expert,” by correspondent Wendy Wu, was particularly telling, putting the contentious question about information control by the Chinese central government in a different light. In February, China’s “leading epidemiologist Zhong Nanshan … [told the media]  that CDC’s functioning had been weakened in recent years, and it was unable to report directly to the central government or issue public warnings.”

On Sunday, Dr. Zhong told People’s Daily that “The CDC [China’s Centres for Disease Control and Prevention] should be granted certain powers, rather than merely being a technical unit to collect and report data.” He emphasized that experts should be permitted to address the public directly, rather than being subject to government limitations:

“China’s CDC is so far basically a technical department. In finding problems, discovering origins of viruses, assessing the severity of contagion, it should have the authority to interpret,” he said. “On one hand it needs professionals, on the other hand it needs to be empowered, like those in some other countries, that can speak to the public when necessary or in emergencies.”

And Jonathan Cheng reported [paywall] for the WSJ in “As U.S., China Clash Over Coronavirus, Their Doctors Quietly Join Forces,”  about the extensive cooperation between front-line Chinese and American doctors and scientists trying to combat the virus.

The U.S. and China are at each other’s throats, bickering over the origins of the coronavirus and bashing each other’s handling of the crisis.”

Behind the scenes, hundreds of doctors and scientists in the U.S. and China have been using online platforms to hold virtual meetings, trading notes on how best to treat patients and procure needed supplies. …

One of the key figures in the trans-Pacific collaboration has been Zhong Nanshan, China’s best-known epidemiologist and the director of the Guangzhou Institute of Respiratory Diseases.

When the coronavirus outbreak began to grow dire in Wuhan in late January, Dr. Zhong—head of a coronavirus expert committee for China’s cabinet-level National Health Commission—reached out to Harvard through Hui Ka Yan, a billionaire real estate mogul whose Evergrande Group has endowed several initiatives at Harvard, including an immunological disease center. …

[Zhong] had visited Wuhan in mid January and his declaration on Jan. 20 that the virus could be transmitted between humans marked a turning point in the world’s understanding of the pathogen. …

“We took advantage of the people that we know in China who were very open and from the beginning they told us, ‘You got to get ready and you got to be aggressive,’” Dr. Criner said. “We listen to them and that’s what we’ve done.”

Some of the strongest connections are through Chinese-American practitioners working in the U.S. “We knew sooner or later this [epidemic] was going to happen here, because we have such strong ties,” said Xu Ruliang, president of the Association of Chinese American Physicians, whose more than 700 members are largely clustered in the tri-state area of New York, New Jersey and Connecticut that has been hit hardest by the coronavirus.

The twin messages? Sometimes lower-level citizens can do more good exchanging information than governments can by inflaming and suppressing it.

And isn’t that the whole purpose behind the First Amendment?

Can Americans Be Prosecuted for Believing the Widespread Chinese Disinformation Campaign About Coronavirus?

Can Americans Be Prosecuted for Believing the Widespread Chinese Disinformation Campaign About Coronavirus?

Facebook is taking a pounding for failing to identify as “political” many ads placed by a coronavirus-related disinformation campaign run by Chinese state media. This isn’t so much Facebook’s problem, as it is an expected outcome of sophisticated intentional Chinese disinformation. Vice noted that:

Chinese state media has been flooding Facebook and Instagram with shady political ads praising Beijing and bashing “racist” President Trump as part of a wider campaign to rewrite its part in the global coronavirus pandemic.

The undisclosed political ads, from Global Times, Xinhua News Agency, Global China Television Network (GCTN), and China Central Television (CCTV), all ran on the two platforms in recent months, targeting users around the world in English, Chinese, and Arabic, but they’ve only now been flagged by Facebook as being political.

Facebook was not the only platform hosting this type of ad; others, such as Twitter, have actively shut down misleading ads and posts. In March, Vice explained its analysis of the elements making up “China’s playbook”, which must seem particularly chilling to anyone supporting free speech on public policy:

  • Silence Dissenting Voices
  • Block Information
  • Spin-up State Media
  • Spread Disinformation
  • Promote Conspiracy Theories
  • Write a Book
  • Deploy a Twitter Army
  • Gin Up More Conspiracy Theories

And Pro Publica explained in long-form detail how the “playbook” disinformation network was shifted from attacking protesters in Hong Kong to coronavirus:

The activities of the influence network were consistent with the timing of the government’s handling of the epidemic and the themes it was publicly pushing. Discussions of a novel coronavirus in Wuhan began swirling on Chinese social media in early January, but the network made no mention of it, continuing to criticize the Hong Kong protests and attack political dissidents. On Jan. 29, six days after the Chinese central government imposed a lockdown on Wuhan, the influence network suddenly shifted its focus to the coronavirus epidemic. That same day, OneSight announced a new app that tracked virus-related information. The announcement was accompanied by a graphic declaring that OneSight would “transmit the correct voice of China” to the world.

“The correct voice of China” is likely to be interesting reading. For example, the official Chinese timeline of the coronavirus outbreak, released Monday by the state-owned media company Xinhua, ignores the crucial first three weeks of the epidemic. One long-form video placed by the Chinese state-owned Global Times, and run on Facebook from March 27 to April 2, said that the Chinese government moved “instantly” at the “onset” of the coronavirus outbreak “on January 23.” But the virus erupted in early December 2019, and Chinese officials actively suppressed information about the outbreak, including silencing Li Wenliang, the whistleblower Wuhan doctor whose death caused an unprecedented wave of rage and grief on social media in China.

To its credit, Facebook announced that it was planning to start identifying ads placed by state actors:

“We are progressing on our plans to label state-controlled media pages on Facebook, including from China, and will have more to share on this soon. We are continuing to work with publishers and third party experts on this issue to ensure that we get this right” a Facebook spokesperson told VICE News, adding that the coronavirus outbreak will delay the rollout of further political transparency measures.

Facebook is struggling to police its platform during the pandemic, as it has sent home the thousands of people its uses to moderate toxic content. Facebook is relying much more heavily on its automated systems to approve ads and moderate content.

But Facebook’s belated announcement doesn’t actually settle the legal questions raised by this second massive state-sponsored disinformation effort. Even leaving aside the obvious implications for public advocacy inherent in police-state silencing of whistleblowers, the Chinese disinformation campaign raises troubling questions under American public policy law, especially in light of recent U.S. Department of Justice prosecutions and investigations, and assertions by Federal Election Commissioner Ellen Weintraub that all it should take to trigger an FEC investigation is a viral or “blockbuster” social media story.

First, the Global Times ad not only mentioned President Trump just before presidential primary votes, but called his actions “racist.” Chinese ads which name American politicians running for office, if run in the United States before elections, including primary elections, might constitute contributions of “things of value” or “foreign campaign intervention” or even “electioneering communications” under federal and state laws:

An electioneering communication is any broadcast, cable or satellite communication that refers to a clearly identified federal candidate, is publicly distributed within 30 days of a primary or 60 days of a general election and is targeted to the relevant electorate.

These are the same sort of actions that triggered intense governmental scrutiny of social media ads placed by the Russian Internet Research Agency disinformation campaign in the 2016 presidential campaign. No such governmental investigations have been announced or leaked as a result of the Chinese coronavirus disinformation campaign, though there is apparently a commitment for a Senate investigation of the actions of the World Health Organization. But will the Chinese efforts be considered campaign finance violations in support of Joe Biden’s presidential campaign, just like the Russian efforts in 2016 that triggered the Mueller investigation of the 2016 Trump campaign? In today’s state-sponsored social media environment, are we likely to face these paralyzing questions and expensive investigations after every campaign?

Second, Americans have started to echo some of the messages circulated by the Chinese propaganda, which could conceivably trigger investigations of those Americans’ actions. Sound far-fetched (as it should)? A recent article in Lawfare explored this possibility in more detail, as noted in a December 2019 post on this blog. Federal investigations and prosecutions have started because of actions based on false social media posts. A 1982 case from the U.S. Court of Appeals for the Second Circuit, Attorney General of the U.S. v. Irish Northern Aidcould be used to find that repeating Chinese propaganda might be construed as triggering registration obligations under the Foreign Agents Registration Act. Greg Craig, former White House Counsel to President Obama, was recently charged — and acquitted — during the Mueller investigation for being an “agent” of the Ukrainian government but failing to fully disclose and report his relationships in FARA filings.

And it appears that U.S. official legal policy is that even innocent or unknowing support of foreign governments can be federal violations. A Dept. of Justice trial memo in the Craig case argued that the American individuals and organizations “caused” to “act” by agents of a foreign government — even without knowing it — would have had to register and make full disclosure under FARA.

Not so long ago, it might have seemed outlandish to suggest that unwitting Americans could be investigated or prosecuted for believing false social media. Indeed, in his acquittal defense, Greg Craig pointed out that he was hardly an “agent” of the Ukrainian government since his position opposed their’s, but that didn’t stop him from being prosecuted.  But today, when sophisticated state-sponsored propaganda can be targeted to trigger individuals to action, the Irish Northern Aid precedent may come back to haunt us.