Free speech or conspiracy? Courts limit protesters’ First Amendment rights

If you have been paying attention at all, you know that we are living in dangerous times in this country. Donald Trump’s chaotic governance has us ducking for cover on all fronts.

His efforts to roll back civil rights and his success in accomplishing his meanspirited goals take on a personal tone for anyone thinking of protesting these unjust policies. 

Exercising what you thought was your First Amendment right to freely assemble, and express dissent might be seen through an overly zealous prosecutor’s eyes as conspiracy.

Throughout American history, conspiracy laws have been used by government as a tool of repression to deter individuals from joining controversial political groups and causes. The law has been weaponized to chill First Amendment activities, without regard or concern for inhibiting legitimate rights protected by our democratic process. 

Recently we’ve seen an alarming upsurge in the use of conspiracy laws to stifle  protest. 

In San Francisco, a prosecutor charged 26 people with conspiracy after they blocked the Golden Gate Bridge protesting the war in Gaza. Most charges were dismissed following completion of community service.

In another case, Stanford students faced conspiracy and vandalism charges after protesters barricaded themselves in a university building. A jury deadlocked on the charges, resulting in a mistrial. 

And federal officials just charged 39 people with conspiracy against religious freedom after a protest inside the Minnesota church of a pastor who works for Immigration and Customs Enforcement.

Conspiracy charges punish collective action, rather than just targeting illegal acts that might be committed during a protest. Indeed, conspiracy often is easier to prove than the predicate crime itself.

Evidence of a crime

The agreement to act is prosecuted under conspiracy law. This means that evidence of lawful coordination and planning of a protest can be used as circumstantial evidence of a crime, even though it seems like it should be constitutionally protected free speech. 

Such broad ambiguities raise concerns about interference with First Amendment rights by allowing governments to crack down on those who disagree with positions of the state.

The law of conspiracy is so vague that it almost defies definition. Conspiracy laws strike at conduct in its most nascent form. 

In California, penal code requires the prosecution to establish an overt act in furtherance of the conspiracy. But this is little more than a formality, since the act itself need not be unlawful. In fact, there is a real danger that the nature of the act might, in itself, encompass free expression. 

The First Amendment prohibits punishing an individual’s commitment or stated promise to engage in expression at any stage prior to that expression. Conspiracy, however, contemplates a different result when the commitment to expression is the agreement of several people. 

While closely-knit groups’ criminal enterprises are clearly punishable as conspiracies — think mafia and drug cartels — it is extremely dangerous and a threat to First Amendment freedoms for prosecutors to use conspiracy laws in the sensitive area of public discussion and opinion.  

The law recognizes the hazards to free expression and cautions, “we should be slow to grant grudgingly today what may become license tomorrow.” 

This leads to the question of whether the danger to society justifies circumscribing First Amendment rights. In today’s repressive political climate, there’s no question prosecutors are using constitutionally protected activities to prove the overt acts necessary for a conspiracy conviction. 

Prosecutors are seeking to limit expressions of opposition to U.S. policies in order to forestall any effect or influence such messages might have on others. The conspiracy law as applied has a “chilling effect,” inhibiting individuals from expressing themselves and from associating with those who propose to engage in controversial expression.

And modern technology makes going after social movements easier than ever. Mass demonstrations are being planned almost instantaneously on social media. You can bet law enforcement is combing through social media posts to gather material, like announcements with details of a protest, including where to gather, or the rhetorical slogans calling for action. 

This leaves vulnerable anyone who might have seen the post and heeded its message to attend, not just those who organized the event.

Evidence of motive

And prosecutors are successfully keeping out of court evidence of the motive, in an attempt to strip the politics of a protest out of the legal case. Judges often exclude evidence of the political reasons that prompted people to take action, agreeing with the argument that genocide, for instance, is not relevant to the vandalism or trespass — or the conspiracy to commit those crimes.

Taking cues from past repressive prosecutions targeting communists, labor unions and anti-war protestors, the revised prosecutorial playbook dangerously flips First Amendment protections on their head. 

At this moment, when constitutional protections are ignored unless they benefit those in power, the use of conspiracy laws effectively erodes social movements and destabilizes the ability to organize. 

Free expression and social movements are the backbone of our democracy. The ability to rise up against authoritarianism and governmental overreach was built into our constitution. 

Conspiracy laws cast a wide net that will undoubtedly grow even wider in the future if such tactics are left unchecked.