John Whitehead's Commentary

Tyrants don’t like people who speak truth to power.

Cue the rise of protest laws, which take the government’s intolerance for free speech to a whole new level and send the resounding message that resistance is futile.

In fact, ever since the Capitol protests on Jan. 6, 2021, state legislatures have introduced a broad array of these laws aimed at criminalizing protest activities.

There have been at least 205 proposed laws in 45 states aimed at curtailing the right to peacefully assemble and protest by expanding the definition of rioting, heightening penalties for existing offenses, or creating new crimes associated with assembly.

Weaponized by police, prosecutors, courts and legislatures, these protest laws, along with free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws, and a host of other legalistic maladies have become a convenient means by which to punish individuals who refuse to be muzzled.

In Florida, for instance, legislators passed a “no-go” zone law making it punishable by up to 60 days in jail to remain within 25 feet of working police and other first responders after a warning.

Yet while the growing numbers of protest laws cropping up across the country are sold to the public as necessary to protect private property, public roads or national security, they are a wolf in sheep’s clothing, a thinly disguised plot to discourage anyone from challenging government authority at the expense of our First Amendment rights.

It doesn’t matter what the source of that discontent might be (police brutality, election outcomes, COVID-19 mandates, the environment, etc.): protest laws, free speech zones, no-go zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws, etc., aim to muzzle every last one of us.

To be very clear, these legislative attempts to redefine and criminalize speech are a backdoor attempt to rewrite the Constitution and render the First Amendment’s robust safeguards null and void.

No matter how you package these laws, no matter how well-meaning they may sound, no matter how much you may disagree with the protesters or sympathize with the objects of the protest, these proposed laws are aimed at one thing only: discouraging dissent.

This is the painful lesson being imparted with every incident in which someone gets arrested and charged with any of the growing number of contempt charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that get trotted out anytime a citizen voices discontent with the government or challenges or even questions the authority of the powers-that-be.

Journalists have come under particular fire for exercising their right to freedom of the press.

According to U.S. Press Freedom Tracker, the criminalization of routine journalism has become a means by which the government chills lawful First Amendment activity.

Journalists have been arrested or faced dubious charges for “publishing,” asking too many questions of public officials, being “rude” for reporting during a press conference, and being in the vicinity of public protests and demonstrations.

It's gotten so bad that merely daring to question, challenge or hesitate when a cop issues an order can get you charged with resisting arrest or disorderly conduct.

For example, college professor Ersula Ore was slammed to the ground and arrested after she objected to the “disrespectful manner” shown by a campus cop who stopped her in the middle of the street and demanded that she show her ID.

Making matters worse, the U.S. Supreme Court issued a ruling in Nieves v. Bartlett that protects police from lawsuits by persons arrested on bogus “contempt of cop” charges (ranging from resisting arrest and interference to disorderly conduct, obstruction, and failure to obey a police order) that result from lawful First Amendment activities (filming police, asking a question of police, refusing to speak with police).

These incidents reflect a growing awareness about the state of free speech in America: you may have distinct, protected rights on paper, but dare to exercise those rights, and you risk fines, arrests, injuries and even death.

Case in point: Tony Rupp, a lawyer in Buffalo, NY, found himself arrested and charged with violating the city’s noise ordinance after cursing at an SUV bearing down on pedestrians on a busy street at night with its lights off. Because that unmarked car was driven by a police officer, that’s all it took for Rupp to find himself subjected to malicious prosecution, First Amendment retaliation and wrongful arrest.

The case, as Jesse McKinley writes in The New York Times, is part of a growing debate over “how citizens can criticize public officials at a time of widespread reevaluation of the lengths and limits of free speech. That debate has raged everywhere from online forums and college campuses to protests over racial bias in law enforcement and the Israel-Hamas war. Book bans and other acts of government censorship have troubled some First Amendment experts. Last week, the Supreme Court heard arguments about a pair of laws — in Florida and Texas — limiting the ability of social media companies such as Facebook to ban certain content from their platforms.”

Bottom line: what the architects of the police state want are submissive, compliant, cooperative, obedient, meek citizens who don’t talk back, don’t challenge government authority, don’t speak out against government misconduct, and don’t resist.

What the First Amendment protects—and a healthy constitutional republic requires—are citizens who routinely exercise their right to speak truth to power.

Yet there can be no free speech for the citizenry when the government speaks in a language of force.

Unfortunately, this is how the government at all levels—federal, state and local—now responds to those who choose to exercise their First Amendment right to speak freely.

Remember, the unspoken freedom enshrined in the First Amendment is the right to challenge government agents, think freely and openly debate issues without being muzzled or treated like a criminal.

As I point out in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, by muzzling the citizenry, by removing the constitutional steam valves that allow people to speak their minds, air their grievances and contribute to a larger dialogue that hopefully results in a more just world, the government is creating a climate in which violence becomes inevitable.

WC: 1051

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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