The First Amendment is the Call to Freedom and Now is the Time to Celebrate Resistance

By Paul J. Hetznecker, Esquire

As we celebrate 250 years of democracy our system is threatened by a storm cloud of fascism that has formed over our political landscape. In cities throughout the country, notably Washington D.C., Los Angeles, and more recently in Minneapolis, the Trump Administration has unleashed its federal shock troops and ICE agents as the frontline assault on the First Amendment.

Criminalizing dissent has long been the playbook utilized by tyrannical rulers to undermine democracy. While the military occupation of major cities is the most serious threat to our freedom in decades, this strategy has been utilized throughout history by governments in an attempt to silence opposition by falsely labeling those engaged in peaceful protests as "criminals" and "terrorists."

For more than three decades I have been honored to represent hundreds of courageous individuals wrongly accused of crimes for simply exercising their First Amendment rights. From mushroom workers arrested during a campaign to unionize, death penalty abolitionists arrested for protesting in front of the courthouse, to the Republican National Convention protesters in 2000, anti-war protesters protesting the illegal wars in Iraq and Afghanistan from 2005-2009, Occupy protesters in 2011,Democratic National Convention protesters in 2016, the George Floyd/Black Lives Matter protesters in 2020, and dozens of others in between, my clients preserved democracy through peaceful protest. The lesson from all of these cases is that our democracy is protected through peaceful resistance. As my colleagues and I educated judges and juries regarding the intersection between the protections of First Amendment rights and the power of the government to restrict liberty, the challenge now is to educate the public that a coordinated national response through peaceful protests is precisely what is needed in this crucial moment in our nation's history.

A key strategy in Trump's totalitarian scheme includes what we have witnessed over the past nine months. First, send the troops and goon squads into Democratically controlled cities, then initiate violence against peaceful protesters, including the killing of peaceful protesters, label peaceful protesters criminals and terrorists, arrest and intern opponents, declare martial law and finally, suspend the constitution and mid-term elections. The response to combat this authoritarian recipe and preserve democracy is multi-faceted, but it starts with resistance in the form of free speech and peaceful protests, the touchstone of our democracy for 250 years.

Under our constitutional system, the right to protest has been the pathway to social and political change. However, this right does not automatically leap from a two-century old scroll into our body politic, into our consciousness, and become law. Rather, resistance to authoritarianism begins with protests, actions by those imbued with the spirit to challenge and speak truth to power. History proves it is resistance on the streets that eventually moves institutions, sometimes at a glacial pace, to change, from the ground up and not from the top down.

During the civil rights movement of the 1950's and 60's, activists marched, organized sit-ins, boycotts and protests against the institutions perpetuating a system of racist oppression. Along with non-violent civil disobedience, peaceful protests, protected by the First Amendment, defined the movement for racial justice. As Martin Luther King stated "If I lived in China or even Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they haven't committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of press. Somewhere I read that the greatness of America is the right to protest for right." The right to dissent, the "right to protest for right," has always been the pathway of our democratic journey.

Inevitably the battle to define our collective freedom, the historic struggle between the affirmation of rights and the denial of rights moves from the street to the courtroom. Last September a federal judge in Los Angeles ruled that the military occupation of Lost Angeles ordered by Trump was illegal. Earlier this month a federal judge in Minneapolis granted an injunction barring ICE and federal authorities from arresting peaceful protesters exercising their First Amendment rights.

Educating judges and juries in these cases regarding First Amendment protections was the goal in most of the protest cases that I have litigated over the years. Marching in the street, blocking traffic, continuing to protest in response to an illegal order to disperse, demonstrating in a corporate space used for a public purpose, all were deemed protected by the First Amendment once the judges and/or juries were educated about the scope, importance and necessity of peaceful protest protected by the First Amendment. However, we cannot look to the courts as the sole refuge to preserve our rights. Throughout our 250 years rights were secured through resistance in the form of peaceful protests, even in the face of state sponsored violence. Lawyers as social engineers can support the effort to preserve for democracy but it is the courageous actions of peaceful protesters that have always led the way to preserve our democracy.

Now is the time to celebrate the millions of voices that have echoed in the streets and down through our history, over and over again breathing life into the words inscribed on the scroll that defines our freedom, "Congress shall make no law"abridging the freedom of speech"or the right of the people peaceably to assemble, and to petition the government for redress of grievances." U.S. Constitution, Amendment I.

Political participation does not begin and end at the ballot box. If voting is the measure of our democracy, political protest is democracy's lifeblood. The Trump Administration's effort to undermine free speech through a military occupation, the testing ground for martial law, must be met with resistance in the form of peaceful protests on the street, supported by accurate reporting in the press and legal challenges in the courtroom. The protests flourishing in Minneapolis and throughout this country against the police state tactics by ICE agents brings life to the First Amendment as the voice of dissent is the enduring legacy of our democracy.

Paul J. Hetznecker is a criminal defense/civil rights lawyer in Philadelphia. He teaches in the Criminal Justice Department of Arcadia University. As part of his practice Mr. Hetznecker has represented hundreds of protesters pro bono for almost forty years.