You Can Call Me Ray

People often feel strongly about a cause. They might see injustice, discrimination, government failures, malevolent actors “getting away with it,” or might simply be championing a cause. So they assemble and protest. Legal scholars will tell you that these are protestors exercising their constitutional rights under the First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Fourteenth Amendment extends this restriction to state governments as well. These constitutional rights do not embrace arsonists, looters or vandals, by the way. 

For various political or historical reasons, the First Amendment has recently become among the most controversial provisions in our Constitution. Fake news and election-directed manipulation claim protection under its aegis. Lies themselves, they say, are constitutionally protected speech. Yet inciting to riot, crying “fire” in a crowded theater where there is no real threat and pornography showing children are all illegal. Twitter and Facebook have already taken to banning or restricting liberals-as-sex-traffickers conspiracy theory promoter Q-Anon in early October. By the end of the month, it seems as if Facebook’s ban is holding. The easy issues are at the most egregious and dangers extremes, where society itself, personal health and safety or vulnerable minorities are seriously at risk of violence. 

But what we are struggling with as a nation is when political incumbents, in charge of police and military power, strongly oppose movements (speech and assembly) that challenge their political perspective, their vision for America… and are willing to deploy that power to suppress contrary expression. It often starts with labels. “Radical” is one of those yellow flag words. So is creating a new label, one that conflates a philosophical concept as if it describes an actual organized body of assembled miscreants. “Antifa,” for example, does not exist as a group. Or applying excess force, as determined by subsequent judicial review, to provoke a violent response or generate footage showing tear gas, and crumbling protestors as proof of the need to suppress.

Are the BLM protesters, those angered at the number of Black Americans killed or maimed by police the huge issue we are told is the case? Officially, the President and the Department of Justice think so. Speaking at conservative Hillsdale College on September 16th, an increasingly rogue US attorney general, acting as if he were the President’s personal lawyer, William Barr pretty much justified a dramatically political agenda for the Department of Justice, with no pretense that violating that agency’s traditional neutrality was dramatically contrary to the DOJ mandate since it was created in 1789:

“Barr overruled a sentencing recommendation by prosecutors in the case against Roger Stone, a former adviser to President Donald Trump who was convicted for lying to Congress about his contacts with the Trump campaign regarding WikiLeaks… In a second case, the Department of Justice is seeking to drop charges against Michael Flynn, the former national security adviser charged with lying to the FBI about his communications with Russia’s ambassador.

“Barr also criticized the Black Lives Matter movement while saying he agrees that Black lives matter. The Washington Post covered those remarks—made in a Q&A session after his speech.

‘They’re not interested in Black lives. They’re interested in props, a small number of Blacks who are killed by police during conflicts with police—usually less than a dozen a year—who they can use as props to achieve a much broader political agenda,’ he said... Barr has urged aggressive prosecution of protesters who are violent, reportedly telling prosecutors in a call last week that they should consider charging them with sedition, according to previous accounts by the New York Times and other publications. Those stories were based on anonymous sources.” Journal of the American Bar Assn., September 17th. Really?

“Sadly, the trend of fatal police shootings in the United States seems to only be increasing, with a total 661 civilians having been shot, 123 of whom were Black, as of August 30, 2020. In 2018, there were 996 fatal police shootings, and in 2019 this figure increased to 1,004. Additionally, the rate of fatal police shootings among Black Americans was much higher than that for any other ethnicity, standing at 31 fatal shootings per million of the population as of August 2020.” Statista.com, August 30th. 

The FBI tells us that the greatest danger they see to society is domestic terrorism, mostly from right-wing white supremacist movements: “On Thursday [9-17], FBI Director Christopher Wray directly contradicted the White House’s anti-antifa messaging push while testifying in front of the House Homeland Security Committee. ‘It’s not a group or an organization. It’s a movement or an ideology,’ he said, explaining that ‘folks who subscribe or identify” with antifa do not operate at a national level, but instead organize ‘regionally into small groups or nodes.’ “When asked about the greatest domestic terrorism threats facing the U.S., Wray did not name antifa. Instead, he cited the kinds of violent extremists historically more likely to side with the president. ‘Within the domestic terrorism bucket, the category as a whole, racially motivated violent extremism is, I think, the biggest bucket within that larger group, within the racially motivated violent extremist bucket,’ said Wray. ‘People ascribing to some kind of white supremacist-type ideologies is certainly the biggest chunk of that.’ The bureau chief went on to note that, when it comes to extremist violence in the U.S., 2019 was the deadliest year since 1995, when white supremacist Timothy McVeigh killed 168 people by bombing a federal building in Oklahoma City.” Vanity Fair, September 17th. 

On June 1st, the President used DC police and members of the National Guard, deploying rubber bullets,tear and pepper gas, to subdue and disperse a group of totally peaceful protestors in order for him to have the above picture taken. “As he brandished an unopened Bible in front of the boarded-up St. John's Episcopal Church across the street from the White House Monday evening, President Donald Trump delivered an unspoken message to white evangelical Christians: Remember, I'm on your side.” CNN. June 3rd. The Constitution was an inconvenience simply to be ignored. AG William Barr and several uniformed military officers accompanied the President to that church (the church’s Bishop protested the event).

But the issue is the increasing use of federal forces – law enforcement and military (the latter, absent massive armed insurrection, is not permitted to be used against US civilians) – to champion the President’s political agenda and to crush those who oppose it via peaceful protests. New “non-lethal” weapons are being discussed as possible “additional force” to be used against protestors. One is called an Active Denial System (ADS), and it was almost used to clear the above peaceful protestors. “Now a new report shows that the military police had attempted to acquire another weapon from the National Guard to oppress protesters that night [6-1]: a heat ray [the ADS, pictured above]…

“A heat ray is a large antenna designed by the military that looks like an oversize DirecTV dish. It’s either mounted on a vehicle or can be deployed as a large stand-alone unit. It fires completely invisible electromagnetic waves that penetrate the skin 1/64 of an inch deep—the depth of your nerves—creating an intense burning sensation if you stand in its path instead of getting out of the way.

“It’s technically the same sort of technology behind your kitchen microwave, but operating at a much lower frequency (the heat ray runs at 95 Hz while the microwave runs at 2.45 GHz). That means the heat ray’s wavelengths are shorter and less able to penetrate an object and transfer energy the way your microwave does to heat your food… Notably, the heat ray has range: The electromagnetic beam can reach over half a mile and is unaffected by wind, though its exact range appears to be classified.” FastCompany.com, September 18th. Is this what the Constitution envisioned as the protection of individual rights? Obviously not. Can our democracy survive if this becomes standard operating procedure no matter which party is in power? Obviously not.

    I’m Peter Dekom, but while many in America believe our democracy is strong and unassailable, constitutional scholars and historians understand how fragile that form of government actually is.