The First Amendment to the Constitution of the United States reads, as pertinent here, “Congress shall make no law … abridging the freedom of speech ….” But speech is different from conduct, even if the conduct incidentally expresses an idea. The right to express ideas does not mean that you can engage in conduct the prohibition of which has nothing to do with speech. Thus, it is (and should) be no defense to a prosecution for obstructing traffic that it was done in connection with a protest.
LehighValleyLive.com (the on-line version of the Express-Times) recently ran an article entitled “PSU student from Lehigh Valley arrested protesting Proud Boys event faces criminal charges” (behind its paywall), which reports that a student who was arrested “during a protest against a Proud Boys event”((The article also reports that the Proud Boys event was sponsored by a student group and (reluctantly) permitted by the University, only to be “cancelled shortly before its start amid a threat of violence.” It does not say who threatened the violence, but it was the Proud Boys who were not permitted to speak. See my prior posts Free Speech is a Bitch, Free Speech, but Not for All Ideas, and Freedom of Religion, As Long As You Agree With Me for comments on how society’s support for First Amendment rights is dependent upon the views expressed.)) (emphasis mine) and who is scheduled to graduate on December 17 is facing not only criminal charges but also University discipline that could lead to his expulsion. The undercurrent is that because he was expressing “good” ideas his conduct should not be punished.
The way the article is written, it is difficult to discern exactly what the student is accused of doing.((It is probably worth emphasizing that I know nothing about the incident other than what is contained in the article. Therefore, I am not asserting that the student did anything wrong, merely that the conduct of which he appears to be accused is not “speech.”)) It does not seem that his anti-Proud Boys views (with which the University probably agrees) are at issue but rather his refusal to obey police orders to leave an area they were trying to clear.
The article suggests that one or more Proud Boys supporters sprayed something on the crowd (described by one quoted person as “an irritant”) and no one has been charged. Certainly, efforts should be made to identify and prosecute anyone who did such a thing, but the inability or failure to do so does not excuse other illegal conduct.
Jay Bohn
December 8, 2022