Freedom of speech or conspiracy? Courts Limit the First Amendment

By Bobbie Stein, especially for CalMatters

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If you’ve been paying attention at all, you know we live in dangerous times in this country. The chaotic administration of Donald Trump has us cowering on all fronts.

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

Exercising what you believe to be your First Amendment right to freely assemble and dissent may be viewed through the eyes of an overzealous prosecutor as conspiracy.

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

Recently, we have seen an alarming increase in the use of conspiracy laws to stifle protest.

In San Francisco, prosecutor charged 26 people with conspiracy after blocking the Golden Gate Bridge to protest the war in Gaza. Most of the charges were subsequently dismissed completing community service.

In another case, Stanford students were charged with conspiracy and vandalism after protesters barricaded themselves in a university building. Jury impasse on the chargesresulting in an error.

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

Conspiracy charges punish collective action, not just the targeting of illegal acts that might be committed during a protest. In fact, conspiracy is often easier to prove than the predicate offense itself.

Evidence of a crime

The action agreement 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 appears that free speech should be constitutionally protected.

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

Conspiracy law is so vague as to be almost indefinable. Conspiracy laws strike at behavior in its most incipient form.

In California, the criminal code requires the prosecution to establish an overt act in furtherance of the conspiracy. But this is little more than a formality, as the act itself need not be illegal. Indeed, there is a real danger that the nature of the act itself involves free expression.

The First Amendment prohibits punishing an undertaking or stated promise of a person to engage in expression at any stage prior to that expression. However, conspiracy provides a different result when the commitment to express is the consent of several people.

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

The law recognizes the dangers to free expression and warns, “we must be slow to grant grudgingly today what may become a license tomorrow.”

This raises the question of whether the danger to society justifies the limitation of First Amendment rights. In today’s repressive political climate, there is no question that prosecutors use constitutionally protected activities to prove the overt acts necessary for a conspiracy conviction.

Prosecutors seek to limit the expression of opposition to US policies to prevent any effect or influence such messages may have on others. Conspiracy law, as applied, has a “chilling effect” by preventing people from expressing themselves and associating with those who propose to engage in controversial expression.

And modern technology makes following social movements easier than ever. Mass demonstrations are planned almost instantly on social media. You can bet that law enforcement is sifting through social media posts to gather material, such as messages detailing a protest, including where to gather, or the rhetorical slogans calling for action.

This leaves anyone who may have seen the post and paid attention to its message vulnerable to attending, not just those who organized the event.

Evidence of motive

And prosecutors successfully kept evidence of the motive out of court in an effort to remove the politics of the protest from the court case. Judges often exclude evidence of the political reasons that prompted people to take action, agreeing to the argument that genocide, for example, has nothing to do with vandalism or trespassing — or conspiring to commit those crimes.

Taking cues from past repressive prosecutions of communists, labor unions, and anti-war protesters, the revised prosecutor’s handbook dangerously inverts First Amendment protections.

At a time when constitutional protections are ignored unless they benefit those in power, the use of conspiracy laws effectively undermines 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 government crimes was built into our constitution.

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

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.