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Let’s Forget the First Amendment

Published: February 9, 2017

Not since the Vietnam War have Americans seen such an angry divide, manifested in outspoken resistance to government policies, protests, and the reaction against protests.

The current wave of public protesting began in 2013, when the Black Lives Matter movement began its street demonstrations. Protesting rose sharply after the last election when opponents of the new administration staged massive demonstrations across the country.

Now some state lawmakers are launching counter-protests through new bills. They hope to discourage demonstrations by increasing the criminality and liability of protesting.

  • Legislators in Minnesota and Iowa have proposed laws that will raise the fines for freeway protesters.
  • A Washington state legislator wants to reclassify civil disobedience that results in “economic disruption” as “economic terrorism” — and a felony.
  • Virginia and Michigan lawmakers also want to raise their penalties on protesting, including union-organized picketing. And Michigan and Minnesota legislators want to make it easier for businesses to sue individual protestors.
  • North Dakota Republicans introduced a bill that would remove the penalties for running over and killing a protestor blocking a highway if the driver’s actions were “accidental.”

Activists claim the new state laws threaten the free speech protected by the First Amendment. The laws would overturn the tradition of allowing public protests so long as the demonstrators didn’t incite violence, disrupt public meetings of police business, resist arrest, or refuse to disperse when so ordered by police.

Fifty years ago, there was similar talk of restraining protests. Thirty-two state legislatures supported the idea of a Constitutional convention that would rewrite the laws on representation and voting rights.

A Post editorial from June 17, 1967, noted that the attack on Constitutional rights had now spread to the First Amendment. Representative F. Edward Hebert had claimed that the guarantee of free speech allowed black leaders (including Martin Luther King, Jr.) to “incite violation of the law.”

His solution? “Let’s forget the First Amendment.”

He knew the Supreme Court would overrule any measure violating the First Amendment, but he thought Congress and the Justice Department should at least try to clean up this “rat-infested area” of civil protests.

There are more than a few similarities between then and now. If the present state of social conflict develops as it did in 1967, there are more protests to come.

Read the editorial, “Let’s Forget the First Amendment,” from the June 17, 1967, issue of the Post.

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