FIRE to Texas appeals court: Don’t let the state turn peaceful protest into a crime

Public spaces and political speech are a lot like apple pie and vanilla ice cream: They’re made for each other. That’s why picketing in a public park, passing out handbills in the town square, and marching down a sidewalk to share a message are all protected by the First Amendment, which safeguards Americans’ right to peacefully gather and share their views in public spaces. After all, as Justice William J. Brennan, Jr. wrote for the Supreme Court nearly 60 years ago, “speech concerning public affairs is more than self-expression; it is the essence of self-government.”

That right is so essential that the Supreme Court has upheld it for expression that would repulse many. Decades ago, the Court recognized the First Amendment protected even Nazis who wanted to parade down the streets of a small town many Holocaust survivors called home. And more recently, it upheld the First Amendment rights of protestors who stood in a public space near a funeral for a fallen Marine with signs reading, “Thank God for Dead Soldiers,” and “You’re Going to Hell.”

Certainly, then, local citizens Torrey Lynne Henderson, Amara Ridge, and Justin Royce Thompson would be unquestionably free to peacefully march with others down the sidewalk in Gainesville, Texas, to protest a Confederate monument at the local courthouse. Right? 

Wrong.

Three days after the march, a magistrate issued an arrest warrant for Henderson, Ridge, and Thompson for violating a Texas statute prohibiting “obstructing a highway or passageway.” Yet other than briefly stepping off the sidewalk at times, including to avoid a water hazard, the protesters didn’t obstruct anything. And, at all times, they proceeded with the blessing of the police officers accompanying the march.

Even more shocking, not only were the three arrested, but they were also convicted and sentenced to a hefty fine and jail time. Throwing peaceful protestors in jail is tyrannical, plain and simple. It’s an action no American should tolerate. And thankfully, the First Amendment stands mightily in its way.

FIRE’s brief urges the Texas Court of Appeals to carefully construe the statute, staving off future attempts to selectively enforce it against peaceful protest and upholding the breathing room the First Amendment requires.

In FIRE’s recent “friend of the court” brief filed in support of the convicted protestors’ appeal, FIRE explains to the Texas Seventh Court of Appeals why First Amendment rights need breathing room to thrive. In other words, if the government wants to regulate free expression, it can do so only with the exacting precision required to avoid infringing on free expression. In the same way, officials cannot distort a statute to ensnare what a speaker says and how they say it. Given that need for breathing space, FIRE’s brief details two dangers posed by the arrest and conviction of the protesters. 

First, FIRE points out how the arrest echoes the troubling national trend of government officials twisting criminal statutes to target dissent. FIRE’s brief points to recent examples like Laredo police arresting a popular citizen journalist under an obscure Texas law for asking a police officer questions, Connecticut police using an anti-discrimination advertising law to target their critics, and Louisiana police arresting a critic under the state’s criminal libel law even after the district attorney told them the arrest would violate the Constitution. As FIRE explains, those examples reflect a dangerous trend: Officials selectively enforcing laws against people who engage in speech they dislike. The circumstances of the three Gainesville protestors’ arrest suggests that this trend continues. 

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Second, FIRE discusses how the State’s over-expansive reading of the Texas statute can suffocate First Amendment breathing space. When Americans peacefully march on a public sidewalk, a brief departure from the sidewalk should not come with an arrest and conviction for “obstructing” a passageway. Indeed, as the Texas Court of Criminal Appeals held in a previous case, only if a person severely restricts or completely blocks a public passageway can the state arrest them under the Texas statute. Underpinning that court’s reasoning? The need to “give ample breathing room for the exercise of First Amendment rights.”

To that end, FIRE’s brief urges the Texas Court of Appeals to carefully construe the statute, staving off future attempts to selectively enforce it against peaceful protest and upholding the breathing room the First Amendment requires. As one judge from the U.S. Court of Appeals for the Fifth Circuit recently put it, “[C]ourts must make certain that law enforcement officials exercise their significant coercive powers to combat crime—not to police political discourse.” 

As explained in our brief, that’s exactly right. We hope the Texas Court of Appeals agrees.