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Violent Politics and Social Media: A First Amendment Conundrum
Anger can cloud reasoning, but it shouldn’t cloud constitutional principles
Many are justifiably angry at the January 6, 2021 insurrectionists who defiled the US Capitol. Their message, their anger at the perceived unfairness of the election, is not being debated here. Their right to peacefully protest and to express their views, whether those views were based on facts or falsehoods, was undeniably protected by the First Amendment. However, their criminal acts, the violence, the true threats, and the vandalism cannot be defended as expressions of constitutionally protected opinion. Conduct does not automatically transform into speech worthy of the First Amendment merely because it was intended to convey a message. So too, the messages themselves do not automatically become infected with criminality because of the conduct of the messenger.
The criminal acts of the insurrectionist should be judged separate from the message they intended to convey. They should be prevented from using the First Amendment as a shield from prosecution for their actions. But the protected speech of the insurrectionists should not be considered as part and parcel of their criminal conduct.
