Don’t Bully My Speech

By Witold Walczak, Legal Director, ACLU of Pennsylvania

What kind of peace and non-violence rally could provoke inflammatory rhetoric like, “Yes we should block them from crossing the bridge, and if we legally can’t then they should force them to walk between us Armed with rifles while we taunt them.”   Or, “I really think people should bring pitch forks and torches this time.”  Another message warned people to “stay off the bridge if you are carrying!—there is video surveillance and the state police have jurisdiction on the bridge.”  Yikes. 

The comments were posted on the Internet by pro-gun-group members plotting to stop, or at least severely disrupt, a May 11 Rally Against Gun Violence, sponsored by the Coalition for Peace Action (CFPA).    The Coalition’s website describes it as a “regional organization dedicated to abolition of nuclear weapons, a peace economy, and a halt to weapons trafficking at home and abroad.”   Their more recent activism has focused on stopping gun violence.  Their leader, for more than 30 years, is the Reverend Robert Moore, who has an impressive pedigree of peace and social justice activism.

The pre-Mother's Day event protesting gun violence, months in the planning, includes a program at Trenton’s First Baptist Church, a march across the Delaware River over the “Trenton Makes Bridge,” and concludes with a rally at Williamson Park in Morrisville, Pennsylvania.  Former Pennsylvania Governor Ed  Rendell is a featured speaker.  This is an anti-violence event.

The intimidation by pro-gun groups opposed to Rev. Moore and his folks has, unfortunately, threatened the event.  It caused the Delaware River Joint Toll Bridge Commission (Commission) to delay issuance of a permit for the CFPA marchers to cross the bridge into Pennsylvania.  On Tuesday, the ACLU of Pennsylvania sent a letter to the Commission indicating that a lawsuit would be forthcoming unless the requested permit was issued by the following day. 

Ensuing communications made clear that the Commission’s resistance to issuing the permit had nothing to do with the ACLU’s clients, the CFPA, but rather by the threats from the counter protesters.   In an email, the Commission’s director wrote that, “to conduct a rally of this type in the very place that children are expected to play baseball, and to bring members of your client's organization that are also children (and the elderly); although it may suit your client's messaging needs, is a mistake.  Please consider changing the date, or the venue, (or minimally do not bring children or the elderly) to decrease the probability of something going wrong.”  Obviously, the volatility was not introduced into this event by CFPA.  

In situations like these, government cannot yield to such intimidation or threats of violence to deny peaceful, law-abiding folks their right to free speech.  This argument to justify censorship is known as a “heckler’s veto,” and works like this: even though we believe you are peaceful and law-abiding, we cannot let you speak, i.e., exercise your First Amendment rights, because people who don’t like your message have threatened public safety if we let you proceed.  It’s a form of blackmail; bullies and lawbreakers can intimidate government into censoring law-abiding, peaceful activists by threatening civil disorder.  Southern sheriffs and governors often invoked this argument to deny permits to, or arrest, peaceful civil rights demonstrators.  Another bridge, the Edmund Pettis Bridge in Selma, Alabama, was the scene of a similar confrontation when threatened violence by local racists prodded the sheriff to blockade the bridge (though the sheriff there didn't need much prodding).

The U.S. Supreme Court has repeatedly rejected the heckler’s veto justification for censorship, ruling in 1950s and ‘60s civil rights cases along the lines that, “Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence.”  This settled principle of law remains vital and necessary today, as witnessed by this week’s events.

Fortunately, the Commission acceded to the ACLU’s request on Tuesday evening and approved CFPA’s permit, thereby allowing the march across the bridge.  Fear that the counter-protesters will disrupt public safety during the CFPA march was, and continues to be, an ongoing concern.  Both the New Jersey and Pennsylvania State Police are on notice and will be monitoring the scene. 

The First Amendment gives everyone in this great land a right to express their views in public.  The First Amendment doesn't, however, allow anyone to threaten violence or disorder when they don’t like what others say.  The antidote for speech we don’t like is not censorship or intimidation, but to respond with a counter argument.

From a civil liberties perspective, the First Amendment doesn't allow government to be bullied into vetoing the speech of law-abiding folks.  Just like the civil rights marchers wanting to cross the Edmund Pettis Bridge in Selma in 1965, gun-safety advocates have the same right to cross the Trenton Makes Bridge unimpeded by opponents’ intimidation.  Freedom of speech cannot survive if government yields to threats and intimidation by shutting down peaceful, law-abiding demonstrators.