In the third day of Amy Coney Barrett’s confirmation hearing for the Supreme Court, senators from both sides of the aisle took turns asking Barrett to answer questions on the issues most prevalent in the United States today. One of them was simple, straightforward, and unfiltered: the First Amendment.
When asked by Republican Senator Ben Sasse to name all of the five freedoms guaranteed by the First Amendment to the U.S. Constitution, Barrett listed off speech, press, religion, and assembly before pausing and asking, “What else am I missing?” The question, like many of those coming from Republican senators, seemed to be intended to be answerable without much effort and highlight her judicial qualifications; however, Barrett’s omission is telling.
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The fifth freedom afforded to people by the First Amendment is the right to protest. And given that 2020 has been a year marked by its protests against racial inequality and police brutality, a year that is encompassing decades of overdue reckoning, it's harrowing to realize that the woman who might be our next justice can't even remember protesting as a right.
In response to ongoing demonstrations since May, some lawmakers have called for new legislation to crack down on protests. According to The Atlantic, much of the legislation being introduced explicitly limits the rights of people whose positions lawmakers do not like. It is not out of genuine concern for protecting speech or the public — it is an adherence to self-interest. There is a correlation between the exponential rise in collective action such as the Black Lives Matter movement and Standing Rock activists and an increased effort to delegitimize and criminalize demonstrations.
But Barrett's lapse here is telling for a number of reasons, including the fact that there is an ongoing push against this first amendment right. According to a report from PEN America, there has been a steady increase in the number of anti-protest legislation proposals. They existed before President Donald Trump ever took office, but after the 2016 election, the number inflated significantly. Most of these proposals increase penalties for protestors: Some require protestors to pay for law enforcement time, others prevent officers from liability should they harm protestors, and others criminalize mask-wearing. Collectively, they erode the right to protest and attempt to redraw the line to say that lawful conduct is narrowly defined depending on who is speaking.
These proposals could easily be argued as unconstitutional given that it violates the First Amendment, meaning there could be court challenges if any of these anti-protesting laws are passed. It is of the utmost importance that whoever fills the late Ruth Bader Ginsburg’s seat has a clear understanding of the right to protest afforded to the people given that related cases could very easily reach the Supreme Court.
It does not appear that Barrett has publicly commented on her thoughts about the right to protest. In two court cases, Barrett issued opinions that supported peoples’ rights and curtailed governmental power to intrude into the private lives of citizens in line with the Fourth Amendment, but without more specific information, it is difficult to know which way Barrett would rule if she were confirmed.