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.
Brandon Straka is a social media influencer. He spent many weeks after the November 2020 election supporting the Stop the Steal movement and urging those who attended the January 6 protests to storm the Capitol. He plead guilty to a misdemeanor offense related to his trespass on the Capitol grounds. Under current constitutional standards, he should be punished for his offence, not for his Twitter posts. However, if one is to read the sentencing memorandum filed by the prosecuting attorneys…Read More
Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Instagram @LynnGreenky.