No, Open Sedition Is Not a First Amendment Right

Like the torrent of video clips showing that last week's terrorist attack on the capitol was more coordinated and more violent than its conspirators would want you to believe, the same conspirators are now pleading two narratives to cover their rear. One is that they were only exercising their First Amendment right to protest. The other is that the Black Lives Matter protests and riots didn't draw the same scrutiny.

The right to protest is not in dispute. If that's all the mob had done, its rights would certainly be defensible and protected, and everyone from the ACLU on down, including me, would defend that right. We'd be taking bets about how dull the Biden inaugural would be by now, not impeaching a president and witnessing one of the FBI's most extensive manhunts in history.

Making up facts and assaulting truth is a hallmark of the Trump cult.Let's assume the protest had remained peaceful. Even then, a protest isn't an end in itself. It's about a message. It should be judged accordingly. The KKK or any other neo-fascist organization has the right to march downtown. But it remains a despicable organization with a reprehensible purpose. It does not have a claim to any moral ground just because it's exercising its First Amendment right. The mob gathered in Washington last week with an equally despicable and indefensible purpose: to overturn a democratic election decided by 81 million voters, certified by 50 states, reaffirmed by 60 court decisions and the attorney general. So it wasn't a protest, since there was nothing to protest. It was the fabrication of a coup that became an armed insurrection. Insurrections are not protected by the First Amendment.

The legal parallel here is with Virginia v. Black, the 2003 First Amendment Supreme Court decision allowing bans on cross-burning if the intent is to intimidate. "There's no other purpose to the cross, no communication, no particular message," Justice Clarence Thomas had said during arguments. "It was intended to cause fear and to terrorize a population."

Trump's own incitement to violence when he directed the mob to the Capitol made the intent clear, burying his fine-print disclaimer "to peacefully and patriotically make your voices heard" in the sharper language of provocation: "You'll never take back our country with weakness. You have to show strength, and you have to be strong." "We fight like hell and if you don't fight like hell, you're not going to have a country anymore."

There was no intent in those words but to intimidate. Fused by other equally incendiary speakers, the march itself was one big cross-burning to light the way to the assault.

Even if they had not breached a single barrier or attacked the Capitol, the "protesters" would have been fomenting sedition. The protest itself was not "a beautiful thing," as Mark Phillips, the local leader of busloads of seditionists who trooped to the capital last week-and that Joe Mullins sponsored-described it last Monday, days after he should have known better than to describe anything associated with that assault as "beautiful" (or inanely blaming "antifa and BLM"). It was an attack on constitutional government based on reckless and malicious disregard for the truth. Trump fueled it. The likes of Mullins, our own Rep. Mike Waltz, Sen. Marco Rubio, Ron DeSantis and countless other Trump stooges incited it on the run-up to the attack.

Now they're back-pedaling, distributing pizza to troops protecting them, and scrubbing their social media fingerprints of their complicity while resorting to that other treachery: using the Black Lives Matter marches as cover. But there's no comparison, starting with intent. BLM marches resulted from the police execution of George Floyd. That murder was the last-straw. The marches were a cry against America's scourge, unparalleled in the West, of police brutality and killings of civilians. There were more than 9,000 marches, all but a few peaceful. BLM marches were calls for civil and human rights, the sort of marches children will one day ask of their parents: "Did you take part? Did you support them?" Pity those who say no.

To compare the summer's marches to last week's mob is like comparing a KKK march with the Montgomery bus boycott (which also drew its share of violence, the bombing of churches and homes of Black leaders). It's a miserable attempt to draw validity from an equivalency that doesn't exist. Those who attempt it are degrading BLM marches as they degraded them at their height last summer. Again led by Trump, the reactionaries libeled the marches as so much rioting and lawlessness, as if property damage, some of it severe and indefensible, and a few killings were the issue-not the carnage and years of police killings. But valuing property over human life has always been an American sickness, a deceitful way to condemn the morally imperative message by disproportionately shrilling over the acts of a few criminal messengers.

It's the old Kent State syndrome of turning killers into heroes and blaming the victims. Recall in 1970 when the National Guard gunned down four Kent State University students who were protesting Nixon's invasion of Cambodia. As James Michener wrote in his book on the Guard's assault, the killings drew "one of the most virulent outpourings of community hatred in recent decades"-not against the Guard, but against the students. The virulence was reflected in day after day of letters to the editor of the local paper, where protesters were reduced to "know-nothing punks," "creeps" and "mobs of dissidents." The Guard's killings were cheered. Four days after Kent State construction workers building the World Trade Center in Lower Manhattan (the ironies never cease) attacked anti-war protesters shouting "All the way USA" and "Love it or leave it," and with the tacit consent of police, provoked a riot that left more than 100 people injured.

There's a direct line between what became known as the Hard-Hat Riots and last week's assault on the Capitol. It wasn't a few criminal messengers that disproportionately commandeered headlines on Jan. 6, but an innumerable mob of lawbreakers that had shifted from the Ellipse to the Capitol grounds with premeditation and intent to do one thing: attack democracy. What started as an exercise in First Amendment rights turned into a criminal assault that left five people dead, including a law enforcement officer, 58 police officers, many others injured, and now 50 legislatures and who knows how many individuals under threat of more violence, not least of it that instigated by our local elected thug, with his colleagues' chronic and complicit indifference.

The mob can hide behind the First Amendment and use the foil of BLM marches all it wants. It's piling chicanery on top of lies. It's more Fox and One America newspeak cesspooling across social media. Call it a difference of opinion if you like. Making up facts and assaulting truth is a hallmark of the Trump cult. Like bacteria feeding on decomposing flesh, it cannot exist otherwise. But like our goon of a president, that pathology and its apologists, however numerous and enduring in Ponzi-schemed circuses like Florida, are as discredited as the nightmare of the last five years.