In the wake of last week’s deadly riot at the U.S. Capitol, William & Mary News spoke with Timothy Zick, nationally recognized free speech expert and John Marshall Professor of Government and Citizenship at William & Mary Law School.
Zick has been a frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns. He testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly, and petition. His most recent book, The First Amendment in the Trump Era, was published by Oxford University Press in 2019.
The First Amendment does not protect violent activity. Those engaged in riotous conduct – breaking windows, vandalizing the Capitol and its contents, assaulting officers, using bear spray, etc. – can’t invoke the First Amendment as a defense to these criminal acts. The First Amendment provides ample breathing space for sharp and caustic political rhetoric. It even protects advocacy of insurrection in the abstract.
However, it does not protect speech that poses an imminent danger of physical injury to individuals or groups or that advocates commission of specific illegal activities. Under the First Amendment, speakers do not have a right to communicate serious threats of bodily injury or death to others, incite imminent lawless action where that action is likely to occur, or conspire to commit criminal acts.
The First Amendment and other constitutional rights generally only apply to government actors, officials and institutions. Facebook, Twitter and other platforms are private entities. As such, under current law they are not bound by the First Amendment (although some have advocated they ought to be, owing in part to the broad powers they exercise over speech).
Social media companies have First Amendment rights of their own – to determine what content to display, comment on false and misleading posts, and even ban users (including presidents). With respect to social media, the terms of service, not the First Amendment, are the applicable “law.” If you agree to those terms and violate them, social media companies are within their rights to restrict your access to the platform.
Like all rights, freedom of speech and assembly are not absolute. Government can restrict the exercise of these rights to further important interests in public order, safety and health.
Generally speaking, government can impose reasonable restrictions on public protest so long as it does not target a particular message, speaker, or group. Although public safety is an important government interest, the fear or anticipation of violence does not allow government to broadly ban speech activities.
However, peaceful protesters may experience greater limits on their activity owing to heightened security concerns – particularly when those concerns relate to something like a presidential inaugural, which officials treat as a “special national security event.”
This provision, passed in the aftermath of the Civil War, bars any person who has previously taken an oath to support the Constitution from holding another federal office if he is found to have “engaged in insurrection or rebellion against” the Constitution of the United States or “given aid or comfort to” its enemies.
President Trump would be disqualified under section 3 if a majority of both Houses of Congress declare he engaged in an act of “insurrection or rebellion” when he incited the Capitol riot. If President-elect Biden signs such legislation, Trump would be disqualified from serving as president in the future. A future Congress could remove the disqualification by a two-thirds vote.
