Attorney: Threats to drag story time symptom of our march to fascism. 5 ways to stop it
David R. Hoffman is a retired civil rights and constitutional law attorney in the South Bend, Ind. area.
One of the bedrock principles of free speech law is the “heckler’s veto,” which states that, whenever an individual or group is granted or has the right to engage in a protected speech activity, law enforcement must take whatever steps necessary to ensure this speech isn’t silenced.
There is an exception to this concept however: If law enforcement reasonably believes that it cannot adequately protect the safety of those engaged in a speech activity, then it can be halted.
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Constitutionally protected activities have been shut down or canceled recently across the country due to intimidation and/or this exception.
Organizers in Columbus canceled Holi-drag Storytime at Red Oak Community School in the face of a protest Saturday by members of the Proud Boys. They described police response as a "casual, distant acknowledgement."
What does this mean for today’s America?
It means that while in theory everyone has the right to freedom of expression, in practice this right is consistently being decimated by those who threaten or engage in violence.
In fact, if this trend continues unabated, the only people who will be able to enjoy freedom of speech are those who have silenced others through intimidation. Sadly, as any historian will attest, this is not freedom, but the pathway to fascism.
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Think what America would be like if this was always the case.
The labor movement would have been crushed in its infancy; the civil rights movement would have ended before it began; and religions that did not subscribe to the faith of the politically powerful would have been driven underground.
Again, as any historian will attest, people were indeed brutalized and even murdered for supporting these causes.
The difference was that the extremists committing or threatening to commit such violence were usually viewed as an aberration and often condemned, not welcomed, by the leadership of mainstream political parties.
This is not the case today.
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Not only has extremism, through social media and other avenues, become normalized, it is openly embraced, either by word or by silence, by self-serving politicians who place power above principle.
What can be done legally?
Fortunately, there may be some legal avenues that can be taken to reverse this trend.
Free speech law also allows federal, state, and local governments to regulate the time, place, and manner of speech activities, as long as they do so in a “content neutral” manner.
Thus, five proposals should be considered:
1) Reasonable buffer zones should be mandatory so that protesters and counterprotesters are separated by adequate space to avoid physical confrontations. It should be considered trespass and assault to violate the perimeters of such zones.
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2) Carrying a weapon of any type in a protest or counterprotest should be banned. By their nature, protests and counterprotests are often already heated. Current laws disallow weapons in other adversarial settings, such as courtrooms, so the same reasoning should apply to protests and counterprotests.
3) Anyone inciting counterprotesters and/or disseminating such incitements through social media or other means to disrupt a protected speech activity, if such disruption results in physical violence to another person, should be held vicariously liable, both civilly and criminally for such incitement. In addition, those found legally responsible under either of these liabilities should lose their right to freedom of speech, because, as Abraham Lincoln said, “Those who deny freedom to others deserve it not for themselves, and, under a just God, cannot long retain it.”
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4) If credible threats of violence compel a venue, public or private, or community to incur additional expenses for security to protect a free speech event, then the persons, organizations, or social media platforms that instigated the need for enhanced security should be held legally responsible for reimbursing such costs. In fact, to ensure compliance, counterprotesters should be required to pay a bond in advance, to ensure such expenses will be covered.
5) Since freedom of speech is a federally protected right, it should be a federal hate crime to interfere with this freedom through violence or threats of violence. However, the mere exercise of this freedom should not exempt speakers, their organizations, or social media carrying their messages from any criminal or civil liability that results from such speech.
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Drastic measures?
Perhaps.
But these are drastic times. Dr. Martin Luther King Jr., while condemning rioting and violence, also referred to it as “the language of the unheard.”
While I have great respect and admiration for King, I don’t think he envisioned a nation where nonviolence is rapidly becoming the language of the unheard.
David R. Hoffman is a retired civil rights and constitutional law attorney in the South Bend, Ind. area.
This article originally appeared on The Columbus Dispatch: Opinion: Silencing drag queen storytime mocks free speech rights
