ACLU Memo Advises Congress On Protecting First Amendment While Protecting Themselves

January 14, 2011 6:11 pm

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WASHINGTON – In the wake of the horrendous tragedy in Arizona last weekend, the American Civil Liberties Union sent a memo to members of Congress advising them on ways they can protect the First Amendment while protecting themselves.

“The ACLU grieves deeply with the rest of the nation for all who were killed or injured in this senseless attack on Congresswoman Gabrielle Giffords and others. There is no place for such violence in our democracy,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office, who authored the memo. “Members of Congress, concerned about their safety while also concerned with protecting the rights of their constituents and other protestors, have asked us for advice on how to protect the First Amendment while protecting themselves. We hope this memo will help Congress to approach public safety and First Amendment concerns in a way that promotes both safety and liberty.”

The ACLU memo distinguishes peaceful protests and the exercise of lawful speech from incidents involving violence, and points out the already broad authority of law enforcement to investigate individuals believed to be involved in unlawful action.

“As lobbyists on Capitol Hill who walk the halls of Congress day in and day out, our legislative office is deeply concerned about the well-being of Senators, Representatives and their staffs,” said Michael Macleod-Ball, ACLU Legislative Office Chief of Staff and First Amendment Counsel. “We would like to help Congress know how to stay safe in a way that upholds our fundamental values and also protects the rights of their constituents and all Americans.”

The following are excerpts from the ACLU’s memo:

“The ACLU, while adamant about protecting the individual rights of all, is also concerned about the well being of all members of Congress and their staff … as well as the safety and well being of protesters…

“The First Amendment to the Constitution is not a barrier to effective law enforcement action against persons reasonably believed to be engaged in unlawful activity…

“It is important to know the facts about what laws protect Members of Congress and their staff so that violent confrontations can be avoided without engaging in overly repressive measures that impede public engagement and do harm to our cherished liberties.”

The ACLU’s memo also offers guidance for members of Congress to answer the following questions:

  • Does the incident in Arizona justify a thorough review of law enforcement practices and procedures for responding to potential threats?
  • What is the current threat?
  • What agencies should Members of Congress and their staff look to for law enforcement support?
  • At what point does hostility become a legitimate threat?
  • What can Members of Congress do to stop threats from occurring in the first place?
  • How does a Member of Congress hold a hearing, host a town hall or community meeting, or conduct business in a congressional office without disruptions? and
  • Why does broad protection for speech serve us all well?

The ACLU’s memo is available online at:

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