Howard Schweber on Protesting ICE and Constitutional Rights

Frederica Freyberg:
When considering ICE enforcement in places like Minneapolis, what is the intersection between the First Amendment, freedom of speech and assembly, and the Second Amendment, the right to bear arms? Because Alex Pretti was in the crowd protesting the enforcement search and carrying a legally permitted gun when U.S. Border Patrol agents shot him dead. We turn to UW-Madison political science professor and legal scholar Howard Schweber, and thanks very much for being here.

Howard Schweber:
Oh, thanks for having me.

Frederica Freyberg:
So in your expertise, are crowds like we’ve seen protesting ICE legally under the First Amendment?

Howard Schweber:
There’s no straight answer to that question. That is protected activity, but it can be subject to regulation. And so for example, there could be permitting requirements. The crowd could be blocking traffic or any number of specific fact questions could come into play. There’s no question the absolute core of the First Amendment is protecting the right of crowds to gather and protest. As always, the devil is in the details, but so the short answer is yes, but with the caveat that there might be some legal issues involved that are more specific. For example, in the protest after Pretti’s shooting, it is alleged that two protesters bit immigration officers, and if that occurred, that would be illegal.

Frederica Freyberg:
Because there are, as you say, exceptions to First Amendment rights I read like uttering fighting words that would apply to protesters and somehow justify violence against them by agents.

Howard Schweber:
Well, justify arrest. The question of justifying violence is a whole different set of questions. So just in the last two years, the U.S. Supreme Court has actually raised the bar, made it harder for police officers to justify their use of deadly force by insisting that an evaluating court has to look at all the circumstances not only the question, “Was the officer subjectively in fear at the moment that he or she fired their weapon?” So the question of use of force is separate from the question of whether someone can be arrested, which may be separate from the question of, “Is the First Amendment applicable or not?” It just gets really complicated. I think the easy way to think about this is as follows: The First Amendment protects the right to protest. No right is absolute. There are things you can say fraud, blackmail, threats that the First Amendment does not protect. And if you do that during a protest, that’s not protected. There are limits on the exercise of First Amendment rights that are known as content-neutral time, place and manner requirements like noise ordinances or “don’t block traffic” or “you need a permit for a crowd above a certain size.” Those are enforceable and generally constitutionally permissible. So just because something is constitutionally protected doesn’t necessarily mean that it’s legal.

Frederica Freyberg:
What about justifying shooting to kill if someone was legally possessing a gun in the midst of a protest? Clearly there’s a difference between having a weapon and brandishing it.

Howard Schweber:
Sure, so here’s where we get I think most known will be the Kash Patel, a director of the FBI, Kash Patel’s statement, “You don’t have a right to bring a gun to a protest.” Kash Patel’s statement will get a failing grade in a freshman class in an undergraduate institution. He is not just wrong, he’s wildly and almost bizarrely wrong for someone who occupies a position in law, a senior position in law enforcement in the United States. We should mention the background politics here. Generally speaking, liberals and progressives don’t love the fact that in recent years the Supreme Court has expanded Second Amendment rights. Generally speaking you know, stereotyping conservatives have approved of that expansion. But there’s no question that the Supreme Court has made it very, very clear that you have a right to carry a weapon in public if you are otherwise lawfully permitted to do so. And the fact that you’re at a protest is utterly irrelevant. The best formulation I’ve heard I didn’t make this up, I wish that I had is we are allowed to exercise two fundamental rights at the same time. You can engage in First Amendment protest and exercise your Second Amendment rights at the first time, and one does not somehow erase the other.

Frederica Freyberg:
And yet in the heat of a moment like the chaos that we saw in these protests, how difficult is it for police agents, federal agents to know about that gun and that protester?

Howard Schweber:
So sometimes very difficult the video evidence is very, very strong that in this case the answer is really easy. To break it down, the protesters were not approaching the officers. The officers approached the protesters. They crossed space to get to them in the absence of any interference or challenge. The officers initiated pepper spraying of the protesters, and Pretti moved to interpose himself between an officer and a woman being pepper sprayed. He was then grabbed and dragged to the ground, at which point officers discovered his holstered weapon, removed it from him, and an officer walked away holding the weapon, all of this before shots were fired. So you could have a case where the facts are really complicated and you could have a case where the police judgment is a close call and has to be debated. This is not one of them. The evidence seems absolutely overwhelming that this was, in any other context, this would be a murder. I would like to add one thing which shows up on the video, which is very interesting. The officer removing the gun is running, seems to be in a hurry. And some people have suggested that he may have inadvertently fired the gun into the ground while he was carrying it, and that that might be what triggered the shooting that the officers heard a shot go off. The possibility of that is enhanced by the fact that the pistol was a Sig Sauer. There are more than a hundred lawsuits presently in courts alleging that that model of pistol has a bad tendency of going off accidentally. It’s why law enforcement has stopped using it. So, there’s some circumstantial evidence that might provide a narrative that might explain what happened. None of that changes the fact that there was no legitimate justification for the police officers to open fire, and the fact that the guy on the ground had previously had a licensed weapon in his holster has absolutely nothing to do with changing that evaluation.

Frederica Freyberg:
How different would this case be about Alex Pretti without all of that cell phone video?

Howard Schweber:
One of the big lessons of these events and this is not the first time, we saw this in the Black Lives Matter protest, we’ve seen it before is how the ubiquity of video evidence obtained by private citizens using cell phones is changing the conversation. We would not know what had happened to Alex Pretti without that evidence. We would simply have no idea. We would have witnesses claiming something, we’d have the government claiming they were lying. And almost certainly many people, if not most people, would accept the government’s word just because the fact that some guy on the street says this happened is not itself compelling evidence. This video evidence, it’s remarkable how this is changing the conversation and changing just the public baseline of awareness. This is a long-term trend. We’re going to be dealing with this for a long time. We’re going to start having to deal with deepfakes and manufactured videos as in addition to real ones. You know, there’s all sorts of questions and all sorts of both good and bad possible outcomes that could come from this “every person a journalist” phenomenon that we’re seeing. At the moment, though, it is by far the most powerful, if not the only effective mechanism that we have for holding government agents accountable.

Frederica Freyberg:
All of that description of what happened, how dangerous is it for protesters to be on the streets exercising their right to protest?

Howard Schweber:
So, this morning I had a conversation with someone who was thinking of participating in protest in Madison today, and is not going to do so because they’re afraid. That person may be overreacting or not. But the intimidation and spreading of terror among protesters and potential protesters is not only very real, it certainly appears to be intentional. And that’s, from a constitutional perspective, the biggest point of what’s going on here. It’s called a chilling effect. The police are acting in a way that are causing people to self-censor, to refrain from engaging in speech they’re entitled to engage in because they’re afraid of what might happen. It’s very small comfort to say, you know, a year or three down the line, a court might say the police officer was wrong in killing you. That’s not really something that relieves us of that sense of fear. And from a free speech perspective, we protect free speech in a way we don’t protect any other right. There’s no other category of constitutional right that we protect with this extra layer of protection. It’s not only that the government can’t prevent you from speaking freely, the government is not permitted to cause you to be afraid to speak freely, even if it might turn out you were within your rights ultimately at the end of the day. That’s that chilling effect. And there’s from my perspective, or in my view absolutely no question that the operation in Minnesota has crossed that line of chilling effect, and it’s far in the rearview mirror, and these operations are wildly unconstitutional.

Frederica Freyberg:
Hmm, and now today, federal agents have arrested two journalists who were covering protests inside a church in St. Paul. That’s also a chilling effect?

Howard Schweber:
It can be. This one is a little more complicated only because there are facts that I don’t know, I think we, the public, don’t know. The facts that we do know are deeply disturbing. So the law is the Free Access to Clinic Entrances Act. It was a law enacted to protect abortion clinics. As part of the political compromise to get that law passed, a section was added that also protects churches. That section hasn’t really been tested in court. The abortion clinics part has, but it is a crime a federal crime under the FACE Act to disrupt or obstruct the operation of a religious service. The allegation by the Justice Department is that these journalists were not there covering the event, but were part of the conspiracy to hold the protest. And their evidence of that, as far as we know, is solely that they attended and filmed a meeting ahead of time at which the protest was being planned. There’s really good reason to think the government’s case is extremely weak. A judge refused to issue a warrant and a court of appeals refused to order the judge to issue a warrant. So these guys, you know, swung at the ball twice and missed on the grounds that there was not sufficient evidence to justify an arrest, and went ahead and arrested these journalists anyway and empaneled a grand jury. It is, I think, extremely likely that this will be yet another, I’ve lost count, but yet another instance of this DOJ failing to secure an indictment from a grand jury, which is supposed to be impossible. I mean, that’s a sign of not just a weak case, but a mind-bogglingly wrongheaded exercise of prosecutorial discretion. But I think it’s clear that the Trump administration doesn’t care about getting convictions. What it cares about is bringing these cases in order to harass journalists and political opponents to make them reluctant to exercise, well, in this case, journalism. Again, I believe that, this is now purely subjective, but from looking at the facts that we know thus far, it appears to me that this is an attempt to chill journalists from doing their job rather than any serious attempt or serious expectation that any criminal charges here will stick.

Frederica Freyberg:
What lessons are we as a nation learning from all of this?

Howard Schweber:
That over the course of years and decades in a really bipartisan way, let me be clear about that, we have given prosecutors far, far more leeway to game the system and abuse the law than we had realized. We have relaxed and reduced, sometimes through the actions and rulings of the U.S. Supreme Court, sometimes through statutes, and sometimes through political practice. We have relaxed and reduced protections of constitutional rights, whether First Amendment, Second Amendment, Fourth Amendment or Fifth Amendment, all of which are implicated in the shooting of Alex Pretti, by the way. We relaxed those protections in the interest of making the executive branch more powerful, of making police more powerful, of making prosecutors more powerful. And in the past it’s always been the case, you know, and maybe it’s still the case that as long as it was the other side politically that was suffering, we would say, “Oh, well that’s fine with us.” What we continue to seem to be unable to recognize as a nation is that we all need these protections because just because your side is abusing the system now doesn’t mean the other side won’t abuse it later. It’s just this basic fundamental notion of limited government under a constitution. And in the case of criminal, in the area of criminal prosecution, those guardrails have slipped dramatically over as I said before, a period of decades, and it’s long been and maybe this will be a moment that we all turn around and reconsider, consider the possibility that we need to strengthen or restore those constitutional safeguards.

Frederica Freyberg:
We leave it there. Howard Schweber, thank you very much.

Howard Schweber:
Thank you.