Amy Coney Barrett Forgot the Right to Protest
By: John Dean
Tags: Trump, Constitution, Politics, Freedom, Supreme Court

Amy Coney Barrett Forgot the Right to Protest

Just Like Trump

Photo by Maria Oswalt from Unsplash in a Photo by John Dean on Unsplash

Ten years from now, the public will remember little from Judge Amy Coney Barrett’s three days of testimony before the Senate Judiciary Committee. The unflappable judge demonstrated that she is knowledgeable and poised. Unlike her immediate predecessor to the Supreme Court, her embarrassment-free background made her a challenging target for those opposing her nomination. Other than the fundamental changes in Constitutional law she and five other conservative justices are likely to make, there isn’t much to criticize.

She wasn’t, however, perfect. One notable instance came with a seeming softball question from Nebraska Republican Ben Sasse. He asked her to name the “five freedoms” outlined in the first amendment to the Constitution. Barrett got four out of five, a passing mark, but not impressive for someone who taught constitutional law at Notre Dame’s law school.

Barrett started strong but stumbled at number five. Sasse was not trying to trip her up. He quickly moved on in his questioning.

Nonetheless, the incident is worth noting, if for no other reason than to remind us of the Five Freedoms’ importance.

Amendment Number One

Relatively few of us have an active recall of the provisions of the Constitution. Even those of us who keep one of those pocket-sized versions handy, like the one prominently displayed by Gold Star father Khizr Khan at the 2016 Democratic Convention, we don’t read them. We should.

The first amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Together, the Five Freedoms offer protections that, despite the safeguards built into the structure of government envisioned by the Constitution as a whole, might otherwise be denied to the public. Thus, they are fundamental parts of the Constitution, in some ways, the most critical.

Guarantees of Freedom Rise in Importance in Troubled Times

While most of us take the five freedoms, especially freedom of speech, for granted, much of the odious political speech of the current Presidential campaign is covered by it. One example is the “Lock Her Up!” chants directed at Hillary Clinton by then-candidate Trump in 2016. Nobody arrested Trump or his allies as they encouraged large audiences to repeat it. And, just this week, when members of a crowd at a Michigan Trump rally called for Governor Whitmer to be locked up, nobody called the police.

Similarly, protesters have marched the streets in several cities carrying “Fuck Trump” signs and have not been arrested, even by federal agents, arguably under the President’s control.

Freedom of speech, of course, is not unlimited. “Fighting words,” for example, are not protected. The utterance of words that cause immediate injury or incites a breach of the peace — things like yelling “Fire!” in a crowded building or inciting a riot through racist language — are examples.

Has Trump Been Over, or Close to the Line?

Some of the behavior of candidate Trump arguably runs afoul of the first amendment. Remember when he suggested a protester be “roughed up” at a campaign rally in 2015? At the same rally, he added:

I’d like to punch him in the face, I tell ya.

Sadly, there are dozens of other examples where Trump arguably attempted to incite violence. Trump glorified violence in one of his more memorable tweets:

These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you.

The White House later tweeted that the President condemned violence.

Trump has also endorsed police violence:

When you see these thugs being thrown into the back of a paddy wagon, you just seen them thrown in, rough. I said, ‘Please don’t be too nice.’

The White House later noted that the President does not condone police violence. Right.

The Other Four Freedoms

The other four freedoms are freedom of religion, freedom of assembly, freedom of the press, and the freedom to petition the government to redress grievances. How is Trump doing on them?

Despite having a Jewish daughter and son-in-law, numerous journalists have accused him of anti-Semitism. He has also undermined the free press, prompting the question of whether you can deny freedom of the press without shutting down newspapers and media.

Remember the Muslim ban?

The Freedom of Assembly

The pandemic raises the question of whether the government can restrict the freedom of assembly in a pandemic. The short answer is that the government can. But what about holding mass political rallies during a Presidential campaign?

Does Trump have the right to risk thousands of people getting the virus by holding “superspreader” events?

The Right to Protest

When women and other groups organized protests against the nomination of Brett Kavanaugh to the Supreme Court, Trump commented:

I think it’s embarrassing for the country to allow protesters. You don’t even know what side the protesters are on. . . .In the old days, we used to throw them out. Today, I guess they just keep screaming.

And what about Trump’s use of federal agents to break up protests last summer in Washington, D.C., and other cities? Remember Trump using tear gas to push back protesters to facilitate a photoshoot in front of historic St. John’s church?

Every Supreme Court Justice Should Know the Five Freedoms

The public should forgive Amy Barrett for her mental lapse in reciting the Five Freedoms. Testifying before a Congressional committee for three days is a challenge. Overall, while many of her responses were frustrating or troubling, she held up well.

When Barrett is confirmed, which now appears a near certainty, she will do well to remember Senator Sasse’s question and the correct response. Even if Trump is defeated and leaves office, the Five Freedoms remain essential. They are a precious safeguard to our way of life. They are a shield against the worst of Trumpism and other autocrats that might gain power in the future.