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Do We Really Still Need Free Speech Week?

Tony Rothert,
Legal Director,
ACLU of Missouri
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October 23, 2014

You bet. More than two centuries since the Bill of Rights was drafted, we continue to see a fundamental lack of understanding on government’s part of just what freedom of speech means. Nowhere was that more apparent recently than in a Missouri suburb reeling from a terrible tragedy.

In honor of Free Speech Week, a refresher.

Look at Ferguson

Starting on August 9, demonstrators gathered in Ferguson, Mo., and throughout the greater metropolitan St. Louis area demanding transparency and respect following the fatal shooting of unarmed, black teenager Michael Brown.

This is to be expected. When people are angry and frustrated with their government, they need the space to express themselves. This has been true throughout our country’s history. Remember the march from Selma to Montgomery? Protests in this country by communities whose concerns are disregarded by the government go back to the Boston Tea Party.

Unfortunately, despite the remarkable role protests have played in our history, over the last couple of months, the ACLU of Missouri has witnessed and received many complaints of law enforcement officials unabashedly violating individuals’ First Amendment rights. Some violations were so blatant and widespread that they would no doubt prompt our founding fathers to throw their arms up and join the march for a government responsive to the communities it serves.

Right to Photograph Police

Days after the protests began, police demanded that videographers turn off their cameras, after which they attacked protestors. The ACLU went to court, where we quickly reached an agreement with local law enforcers to acknowledge and agree that the media and members of the public can freely record the activities of police officers as long as no one’s safety is threatened and police aren’t obstructed from doing their jobs. Thanks to that win, it’s easier for us – and the media – to ensure rule of law is being followed in Ferguson. There is now no shortage of video recordings of police activity in Ferguson. Unfortunately, some of those recordings demonstrate the kind of police behavior that fuels distrust.

Officer Go Fuck Yourself

One evening in mid-August, a police officer pointed an assault weapon at peaceful protesters in Ferguson and threatened to kill them. When asked by reporters and protesters to identify himself, the officer replied, “Go fuck yourself.” A journalist photographing the encounter was arrested. The very next day, the ACLU of Missouri sent a letter to the superintendent of the Missouri State Highway Patrol to demand that the officer be identified and removed from duty. Within hours we learned the officer would no longer work in Ferguson. Later, it was reported that he resigned from his job with the St. Ann Police Department.

Five-Second Rule

For several weeks, peaceful protesters in Ferguson were forced to keep moving or face arrest. What the ACLU dubbed the “five-second rule” effectively banned static protests on streets or sidewalks. But there was no legal basis for the rule. Our immediate attempt to secure a temporary restraining order against the practice was unsuccessful. However, working with attorneys from the law firm Munger, Tolles & Olson, the ACLU was able to gather and present compelling evidence that resulted in an order preventing police from enforcing the rule. Law enforcement officials can no longer force peaceful protesters in Ferguson to keep moving.

Bottom Line

When officers misuse archaic ordinances – against loitering, for example –to arrest individuals exercising their free speech rights, they’re not upholding the law. Rather, they’re perpetuating the perception that police are there to harass citizens rather than protect their rights.

During difficult times, police should exercise restraint and allow people to express themselves. Until that’s abundantly clear to police across the country, then yes, we still need Free Speech Week.


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