In Donald Trump's America, the crackdown on protesters is the real free speech issue

A nation has decided that preaching hatred is non-violent protected speech, but standing outside shouting, holding a sign and wearing black is an act of violence punishable by years in jail.

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There’s a free speech crisis in America, but it’s not the one you’re thinking of. On 20 January 2017,  a few miles away from the inauguration of Donald Trump in Washington, DC, more than two hundred people were rounded up, attacked with tear gas, pepper spray and batons, held in a police kettle for hours in violation of the standard procedure for dealing with protest, and eventually charged with felony crimes. Those two hundred people included journalists, bystanders and many individuals who were doing no more than holding signs and shouting, plus a few more who were later arrested in connection with allegedly organising the protest. All have now been served with extra charges that could see them jailed for a decade or more, along with the lifelong stigma of felony convictions.

“Defendants who were facing one felony charge are now facing multiple charges with jail exposure of decades,” said Mark Goldstone, an attorney for several of the protesters, who has defended activists in DC for more than 30 years. “It is very damaging and chilling to freedom of speech [for individuals to face] such serious charges for conduct engaged in by others.” Many suspect that the new charges are designed to frighten protesters into taking a plea deal - even if a jury trial would have found them innocent.

This sets a dangerous precedent. The American Civil Liberties Union (ACLU), the National Lawyers’ Guild and others have condemned the blanket charges as an attack on citizens’ constitutional right to protest, as representatives of the defendants sue the DC police for excessive brutality. “To the extent the government is prosecuting people who were not breaking any law, of course it will have a chilling effect on participation in protest,” said Art Spitzer, legal director of the ACLU in Washington DC. “We think they are prosecuting some people who were not breaking any law. The prosecutor’s attitude seems to be 'indict first, investigate later'. That is an improper practice, and seems  to have resulted in the prosecution of many innocent people.”

Mass arrests of political protesters have happened before, but this is the first time that hundreds of people have faced serious felony charges, "at least in modern times", according to Spitzer. Goldstone agreed, saying that “The Trump administration is no friend towards the First Amendment and this is an obvious first example.”

The excessive charges laid against the "j20" protesters have the stink of a show trial. These people are now facing years in jail on new felony charges of incitement to riot, property damage and assault on a police officer. No police officers were seriously injured during that demonstration. 

However, fact has never been a driving moral function when it comes to the legal repression of civil disobedience. The intention is clearly to make an example of these protesters and journalists. And such excessive charges will make others think twice about coming out to express their dissatisfaction with a regime bent on tearing up the US constitution to furnish the men’s rooms in Mar-a-Lago.

I'd like you to slow down and think about that. If you're American, the idea of locking people in sweltering cells for decades and stripping them of all rights simply for being the wrong person in the wrong place at the wrong time may well seem normal to you. Maybe not comfortable, but an everyday fact of life, like death and corporate tax cuts. The specific structural brutality of the nation you were raised in has a way of becoming invisible. Merely existing within a system that encompasses the unbearable fact of the US prison industrial complex requires a certain suspension of outrage. 

By contrast, if you're not American, words like "felony", drenched in legalese and the stale rhetoric of beaurscracy, will lack the dreadful resonance they hold for US citizens. But to be a felon means, in a great many states, to be stripped of your voting rights and barred from almost all employment, even if by some miracle you escape jail.

I was there that day in Washington. No, not in black bloc, and not even reporting - in fact, I had technically clocked off for the day after eight hours of covering the inauguration. I was heading back to file copy, get warm and nurse a galloping head-cold when I walked slap into the middle of the j20 protest. It was terrifying. Not because of the activists in black, but because of the hundreds of riot police in full battle armour throwing tear-gas canisters and corralling young people down the street. 

I saw a few of the usual suspects kicking bins over, setting them on fire, and building tiny symbolic barricades across the street, to the delight of photographers - but nothing that was an imminent danger to life and limb. At least not on the civilian side. The police response was wildly out of proportion, and so, now, are the charges being laid against protesters. 

The bin-burning and the black hoodies were not, by any sensible definition, acts of violence, but they were provocative - a crude and courageous middle finger raised to the Trump regime as it oozed into office. When a state treats simple acts of citizen provocation as criminal violence and responds with extreme force, that state is scared of something. When a regime says nothing to prevent the locking up hundreds of protesters on its very first day in power, that regime may not be planning a tolerant attitude to the robust exchange of ideas.

That First Amendment that everyone's so keen on theoretically guarantees "the right of the people peaceably to assemble". But what does that mean in practice? Having legal protections for non-violent protest matters a lot less when the law can simply be reinterpreted or wholly rewritten to redefine what a "peaceable assembly" means.

A nation has decided that preaching hatred for migrants and minorities from a public platform is non-violent protected speech, but standing outside that platform shouting, holding a sign and wearing black is an act of violence punishable by years in jail. That is a choice. It is a political choice, as is the ever-shifting definition of who is a "rioter" and who is a "good protester". You can bet that if two hundred members of, let’s just say, the Ku Klux Klan were corralled, attacked by police and threatened with decades in jail for a spot of rowdy marching, wingnut Republicans would not be the only ones defending their right to free assembly.

Where is Bernie Sanders on this? Where are all the other self-appointed heroes of the Democratic left, when the free speech of their fellow travelers needs defending? Sanders came out to insist on Ann Coulter's right to speak her brains at Berkeley, but has been curiously silent on the subject of hundreds of radicals facing felonies for being the first to stand and say no to this new regime.

The mythos of American patriotism is dripping in cod-revolutionary sentiment, but actual rebellion is invariably met with baton-charges and punitive prosecution, unless it comes from the far right and serves the interests of state. This is not a new trend. Henry David Thoreau observed two centuries ago in his essay "Civil Disobedience" that:

“All men recognize the right of revolution; that is, the right to refuse allegiance to, and to resist, the government, when its tyranny or its inefficiency are great and unendurable. But almost all say that such is not the case now. But such was the case, they think, in the Revolution Of '75.”

The community of anarchists and anti-fascists in America lives under the real and relentless threat of state violence. They knew exactly what they were doing by attending that protest on 20 January 2017, and exactly how much they were risking by simply being there and voicing opposition. I don’t know about you, but I consider that rather brave. Whether or not you agree, if you support the right of far-right pundits to preach violence and hatred from a public platform but think that anarchists shouting anti-Trump slogans should be locked up, you’re no supporter of free speech. What you supports protection for prejudice, and nothing more.

There is a narrative developing whereby anti-fascist and anti-authoritarian activists are the "real" fascists, that black-clad protesters are violent and venal by association and that they deserve everything they get, from police brutality to decades in jail. That narrative is wrong and dangerous. If Americans allow the state to define the terms of "legitimate" resistance, that resistance cannot win - whatever form it takes.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.