Saturday’s military parade in Washington, D.C., comes at the close of the week the Trump administration deployed Marines and National Guardsmen, over the objection of state and local officials, to respond to protests and civil unrest in Los Angeles. Meanwhile, a long-planned day of demonstrations are occurring across the country under the banner of “no kings.” In this climate, Trump earlier this week issued an ominous warning to anyone planning to protest the military parade: “If there’s any protesters that want[] to come out, they will be met with very big force,” adding “this is people that hate our country. But they will be met with very heavy force.”
Commentators in Just Security and other outlets have explored the important constitutional and statutory questions about the President’s authority to engage military personnel in the context of domestic law enforcement and crowd control responses to protests. Others, including several distinguished former military leaders, have raised alarm about the ways that deploying military personnel for such purposes inside the United States harms public trust and troop morale. But a paramount constitutional concern is the threat to the First Amendment when military force is used in response to speech.
In Thursday’s district court order ruling that the Trump administration unlawfully federalized the National Guard, Judge Charles Breyer rightly rejected the “argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion” under the authorizing statute. The court explained that the First Amendment demands broad protection for public demonstrations, and using protests as a basis for claiming “rebellion” is simply “untenable and dangerous.” Also troubling from a First Amendment perspective is the text of the memorandum that seeks to invoke the President’s authority. It states that the federalization of the Guard is to respond to the “protests or acts of violence [that] directly inhibit the execution of the laws,” and authorizes their direction to “locations where protests against [federal immigration] functions are occurring or are likely to occur.” In essence, Trump ordered the National Guard onto the streets to make a show of force against protesters, even absent acts of violence, with a broad scope to do so anywhere such protests might arise.
These statements by the president and official directives strike at the core of the First Amendment. The Constitution guarantees Americans’ rights to peacefully associate and collectively advocate against the government without fear of reprisal, and especially from the use of military force. From Justices Holmes to Marshall, O’Connor to Alito, the Supreme Court across many generations and compositions has made this clear: “the First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and courts will “scrutinize carefully any restrictions on public issue” demonstrations.[1] This is because, as the Court has observed, the Framers considered the “right of peaceable assembly … to lie at the foundation of a government based upon the consent of an informed citizenry.” Such free speech and assembly protections are at their height when the people take to our Capital’s streets and parks that, as Justice Robert Jackson recognized long ago, “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
Though there is little known publicly about the details of the President’s plans for restricting demonstrators in Washington, his remarks about suppressing “any” protests “with very heavy force” raise serious concerns of both ex post and ex ante abridgments of protected First Amendment activity. This threat of “heavy” federal force––particularly militarized force––severely chills core protected speech. And the notion that the federal government will retaliate against citizens who express views in opposition to the administration is antithetical to the basic American commitment to protecting collective free expression as a bulwark against oppressive government action. Characterizing dissent as “hate [for] our country” is not only wrong, it misses the central role that protest plays in our democracy.
First, the threats of aggressive responses to tamp down counterprotests will chill protected speech. The chilling effects of threatened force are not an abstract risk. When the President states that protesters will be met with force, at the same time that he has ordered federal troops into Los Angeles, many individuals who want to engage in peaceful protest will stay home to avoid conflict.
Courts have long acted to prevent these chilling effects from threats of force. After the widespread and heavy-handed police responses to demonstrations during the summer of 2020, including by federal officials operating beyond their authority to retaliate against opposing protesters, courts across the country acted swiftly to enjoin the disproportionate use of force against demonstrators.[2] These courts understood the urgency of issuing effective injunctions to relieve the severe chilling effects on the protected speech of passionate but peaceful protesters. Indeed, First Amendment doctrine rightly recognizes the importance of holding the courthouse doors open by permitting “relaxed” standing requirements when chilled speech is at issue. The official threat of retaliation or force used in response to speech will itself cause people to self-censor.
Here, even the prospect of military involvement in the response to demonstrators whom the administration opposes raises the stakes. It threatens to distort our national discourse by scaring people into staying quiet, effectively silencing their voices of dissent.
The First Amendment permits legitimate law enforcement actions in response to law-breaking, or viewpoint-neutral safety restrictions to secure the parade. But the President’s statements seemingly threaten protest leaders this weekend with the type of retaliatory actions that the First Amendment strictly prohibits––arrest, force, or liability imposed because the President disagrees with their message or viewpoint.
Federal officials and military personnel must heed their duty to the Constitution and our democratic values. Permitting peaceful demonstrations on behalf of viewpoints with which the administration disagrees is what makes our country strong; threatening to put down those opposing views with force only exposes the weaknesses of the administration’s fidelity to the Constitution.
Second, there is also the threat that the lawful protestors of the military parade will face ex ante access restrictions to curtail the expression of their opposing views. Public reporting indicates that the Secret Service Special Agent in Charge has put in place “a robust plan for civil disobedience” for Saturday’s military parade, which may include screening and access limitations on attendees. Carefully tailored and viewpoint-neutral restrictions to protect public safety are permissible and welcome. But in the context of the President’s remarks, attendees may be rightly concerned that access and screening limits will be applied in a discriminatory manner, or even manifest as unlawful limitations on press access designed to prevent media from observing or recording use of force against protestors.
Here again, the First Amendment guards against any excessive or discriminatory limits on protest activity. “It is uncontested and uncontestable that government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express,” wrote Justice Ginsburg for a unanimous Supreme Court. And “the Supreme Court has repeatedly observed that excluding the media from public fora can have particularly deleterious effects on the public interest, given journalists’ role as surrogates for the public.”[3]
The President’s invocation of purported authority to deploy the military as a response to protected free speech raises alarming applications of untested laws meant for use only in true emergencies. In this moment, it is crucial that the country recommits to fundamental First Amendment principles: regardless of their authority, no official can abridge Americans’ core rights to peacefully assemble and voice their dissenting views. The President’s announced “heavy force” response to the parade’s counter demonstrators, in conjunction with calling up military personnel, is repugnant to the First Amendment rights to free speech, “peaceably to assemble, and to petition the Government for a redress of grievances.” It is inconsistent with our history as a nation and tears at the fabric of American democracy.
[1] Boos v. Barry, 485 U.S. 312, 318 (1988) (in part quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)); see also Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2607–08 (2020) (Alito, J., dissenting from denial of application for injunctive relief).
[2] Abay v. City of Denver, 445 F.Supp.3d 1286, 1291–92 (D. Colo. 2020); Don’t Shoot Portland v. City of Portland, 465 F. Supp. 3d 1150, 1156 (D. Or. 2020); Black Lives Matter Seattle-King Cnty. v. City of Seattle, Seattle Police Dep’t, 466 F. Supp. 3d 1206, 1213 (W.D. Wash. 2020).
[3] Index Newspapers LLC v. United States Marshals Serv., 977 F.3d 817, 830 (9th Cir. 2020) (collecting cases).
