Has anybody other than Bandolero noticed the new terminology the mainstream media is feeding the masses these days? They are words such as “transformative”, “de-platform” and probably many more that we could mention if we could remember what they are. Regardless of what they are, or may be, the truth of the matter is that freedom of speech has been emasculated. It has become acceptable to censor things that the Woke Police have decreed should be removed from a woke society that’s sensitive to the sensitivities of certain populations, particularly, minority populations such as blacks and native americans and gays and lesbians and other sexual identifications and illegal immigrants. Things that were written in the pre-woke days of our country are systematically being hidden away in dark cavernous vaults in Montana and the Dakotas so that these minorities won’t accidentally see them and be insulted, and so that others won’t get the idea that it’s okay to write such things. We wonder, though, whether this might be counter-productive to the interests of these minorities. Without these examples of what’s non-woke and inappropriate, new generations won’t know what’s non-woke and inappropriate and, as time goes by, may inadvertently or possibly even intentionally repeat the errors of the pre-woke ways of our deceased forebears and senior citizens who will soon be deceased forebears rather than Social Security burdens upon the new economy envisioned by millennials who feel entitled to free college and have no idea who Bat Masterson or Roy Rogers were, much less any appreciation for those who fought and died to create the country and save it from Nazis and Commies and other Europeans who were led by the millions to believe that socialism and fascism were better for the human race than the American Way. The point is, “censorship” used to be a nasty word in this country, it being understood that it was condemned and prohibited by our very Constitution (actually, by one of the amendments to it that are referred to as the Bill of Rights). People used to say, “i may disagree with your words, but I’ll fight to the death for your right to say them.” No more! Only words that have been approved by the Woke Police are deemed to be protected these days. One only need to mine the archives of Netflix or any of the streaming media movie collections to find any number of examples depicting nasty evil governments and dictatorships that arrested people and sent them to re-training camps after they spoke words or sentences that were officially prohibited (censored), or to watch scenes of book burnings that senior citizens and deceased forebears used to watch with dismay and disgust and gave thanks that such could never happen here! Well, good-bye Mr. Clemens; adios Dr. Seuss. And don’t get us started about statues. Good-bye, America. It was good while it lasted. But, fear not, patriots. El Bandolero has not given up, has not surrendered, and most importantly, has lost neither love for nor devotion to the principles of freedom one may find in our Constitution and Bill of Rights. El Bandolero will continue to fight for our principles. Well, er, wait a minute. The word “fight” will probably get red-flagged by some algorithm employed by the Woke Police and their strong-arm agents. So, instead, El Bandolero declares that he will continue to stand up for our principles.
Category Archives: Law
The First Amendment’s Right to Protest
NOTE: We covered essentially the same topic a few days ago and this is largely a re-hash or re-statement or re-peat of our prior effort. Nevertheless, this is just one facet of a really important concept and big picture that people aren’t grasping, let alone understanding. This failure is due not only to ignorance of what the First Amendment actually says, but also to ignorance of the extent to which the entire fabric of the Constitution and Bill of Rights has been destabilized, diluted and desubstantivized. Wake up, People! We’re losing it!
We’ve heard a lot of talking heads talking about, and seen a lot of media writers writing about, and a lot of protesters making claims about, a “Right to Protest” which they blithely pronounce is guaranteed by the First Amendment. This got us running to our handy portable copy of the Constitution and Bill of Rights. We could not recall ever seeing a “Right to Protest” in the First Amendment, although having read it many times. Here is the First Amendment; it’s pretty short:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first thing to note is the first part of it: “Congress shall make no law…” It’s about what the federal government can’t do. It shall not (1) establish a religion, (2) prohibit the free exercise of religion, (3) restrict freedom of speech, (4) restrict freedom of the press, (5) restrict the right of the people to assemble peaceably, or (6) restrict the right of the people to petition the government for redress of grievances. It’s unclear whether #5 and #6 go together or are two different things. That darned comma after “assemble” makes it unclear. Regardless, it all only prohibits what the federal government can do. We should note, however, that the Fourteenth Amendment extended the First Amendment to state governments. Either way, it doesn’t apply to private citizens and businesses unless employed by and acting on behalf of the government or operating under the auspices of (i.e. licensed or funded by) the government.
So, where is the Right to Protest? Since it isn’t expressly stated in the First Amendment, it must somehow be inferred from something that is. We think it must come from #5 and #6, the right to assemble peaceably and petition for redress of grievances. For those who don’t know, “redress” does not mean “dress again”. It means, “remedy (or fix) an undesirable or unfair situation”. For those who don’t know, “petition” means “a formal written request made to an authority or organized body”. It doesn’t actually have to be in writing unless required by the rules of the authority or organized body, such as a court of law. In common parlance, “petition” basically means “to ask for something”. So, while there is no “Right to Protest” there is a “Right to Assemble (Peaceably) and Petition for Redress” which seems to be what most protesters are aiming for. We’ll address the missing “Peaceably” element later.
If you can hang your hat on one right, such as “Right to Assemble and Petition for Redress”, why not go for two or three? What about Freedom of Speech and/or Freedom of the Press? Protesters often speak (and shout and scream) and carry signs (and banners and things that might be called symbolic objects, like effigies) while protesting. There ya go! As long protesters are talking or shouting about something, and/or carrying signs or banners about something, they would arguably be exercising Freedom of Speech and/or Freedom of the Press. We think, however, that Freedom of the Press is a bit of a stretch. Most of the signs and objects we see aren’t produced by any sort of printing press.
What about a protest that includes violence such as destruction of property or injury to persons? Some protesters who were interviewed by the hard-charging free and unbiased press asserted that violence is a form of speech. Say what? Well, thanks to misguided judicial pronouncements of the ’60s, they actually have a legal point. The definition of “speech” was bloated by the Warren Court to encompass various types of nonverbal conduct. The Court, after scratching its collective head and humming mantras over what to do about people burning the flag and their draft cards, dreamed up the concept of “symbolic speech”. Suddenly, all sorts of conduct, including criminal conduct, became protected by the First Amendment’s prohibition against restricting freedom of speech. Henceforth, people could avoid going to jail for committing crimes by claiming their conduct was symbolic speech and, therefore, protected by the First Amendment. Breaking windows and stealing smartphones becomes symbolic speech in furtherance of a protest seeking redress for grievances about being held under the thumb of white male capitalists and being selectively prosecuted and being denied the fruits of opportunity promised by America, the Land of Freedom and Opportunity because of one’s race, ethnicity, or sexual identity. Setting fire to police officers and their cars is symbolic speech in furtherance of a petition to redress unequal and unfair justice due to the racism embedded in the criminal justice system and the use of excessive force by law enforcement officers in the enforcement of the law.
Now, what about that word, “peaceably”? The First Amendment refers to the “right of the people to assemble peaceably“. The only thing we can figure out is that maybe, arguably, “peaceably” isn’t really mandatory, like the other wording in the Amendment. Maybe, arguably, it’s only a guideline. After all, it’s rather subjective. What’s peaceable to one person may be offensive or even violent to another. Yet, we can’t help thinking of things people often say about “rights”. Things like, “Your rights stop where my rights begin”; and, there’s no right to yell, “Fire!” in a crowded theater, much less start a fire in a crowded theater; and, “You’re free to burn down your own house, but not mine!” Let’s consider what’s actually a somewhat nonviolent form of protest. We think the question of whether such statements are valid or not should be addressed in another essay. This one is getting rather long.
Do protesters really have the right to block a public thoroughfare when it violates the right of drivers of all colors, races, social status, and sexual identity to get where they need to be? Does that mean I can park my car in the middle of the street and hold up a “Ban the Police!” sign and not get arrested? If not, then how many people of what color, race or sexuality need to join me in order to qualify as a “protest” that’s protected by the First Amendment so we can’t be arrested or hosed? When there’s a large park adjacent to the road, how does it violate the protesters’ rights if they’re required to camp in the park instead of on the street? Oh, right, “symbolic speech”. Blocking traffic is “symbolic speech” representing a petition to redress a grievance about, maybe, air pollution and global warming. But, um, what does it represent with respect to systemic racism? Oh! I get it! It’s symbolic of the highway to prison that minorities find themselves on, in contrast to WASPs who are given a walk in the park! And by blocking it we are symbolically petitioning the government to redress our grievance about it! Yes!
There you have it! The First Amendment’s Right to Protest! And even the right to camp on the highway.
Right to Protest
In light of recent events, Bandolero believes we should take a look at the First Amendment of the Constitution of the United States of America.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It’s amazing how much can be said with so few words!
It has lately been repeatedly said that protesters were exercising their First Amendment rights. Apparently, it is asserted that a “protest” is covered by “freedom of speech”. Bandolero doesn’t see that. A protest seems more appropriately to fall under “petition the Government for a redress of grievances”. In either case, Bandolero cannot find any right to pillage and vandalize property, nor any right to stop traffic, nor any right to throw water bottles and other projectiles at police, nor any right to assault and batter people. Nevertheless, all of these are being embraced as forms of “protest” protected by the First Amendment. It appears that they have overlooked the word “peaceably”. Or, perhaps, they have re-defined the word “peaceably” so that all of those activities are now considered to be peaceful. Bandolero shakes his head in dismay and disappointment. No, they are not peaceful.
Bandolero wonders if there’s any difference between a “protest” and a “demonstration”. In the 1960’s, large gatherings and marches were usually referred to as demonstrations; participants were demonstrators. Their purpose was to publicize things the demonstrators considered to be violations of the rights of, or injustices committed against, certain people, usually black people although native Americans got quite a number of demonstrations. Generally, the demonstrations were done “peaceably”, and served to petition the government for redress of grievances. The recent “protests”, on the other hand, have served to display outrage and express the sentiment, “I’m not going to take it any more!” That may amount to a form of petition for redress. However, there is no Constitutional right to petition for redress by breaking windows, spraying graffiti, throwing hard objects, looting, or assaulting; nor are such activities covered by freedom of speech. They aren’t speech, they are crimes; although, listening to some of the protesters, they seem to be asserting that the commission of a crime is a form of speech. Hmm, Bandolero may need to review his legal history, as he can’t recall whether burning draft cards and/or the flag was finally decided to be a form of speech protected by the First Amendment! Still, those would be victimless crimes, at least! We heard several talking heads assert that the destruction of a few small businesses and the beatings of a few innocent civilians was a small price to pay in relation to the bigger picture of protesting systemic racism in America. As if they never heard the phrase “slippery slope”.
Recently, large noisy rancorous in-your-face antagonistic car-bombing store-looting gatherings of people have been referred to as protests rather than as demonstrations; the talking heads being quick to assert that the violence was insignificant. It seems that the purpose of this shift in terminology serves the purpose of bringing uncivil activities within the scope of what is protected by the First Amendment. This is both unfortunate and dangerous. Nevertheless, it can be seen as an element of the left’s strategy to expand the First Amendment and bring illegal activities within its scope. Bandolero, for one, will continue to oppose this strategy. The First Amendment, and all provisions of the Constitution, must be preserved and protected, not re-defined into meaningless slogans to fit the political correctness of the moment.