Protecting Expression, Not Criminal Acts

India-Grace Kellogg
January 28, 2021

For the past year, our nation’s capital has been flooded by protestors. The Black Lives Matter protests following George Floyd, Breonna Taylor, and countless other people of color’s deaths at the hands of police re-invigorated a debate on what ”acceptable” protests look like. To many, the debate highlighted a clear break in the types of information that citizens are receiving about important topics, whether through their own lived experiences or through the media they are consuming. On one side, Black Lives Matter protestors were considered justice seekers facing violent suppression of their Constitutional right to protest while the other side balked at property damage, arguing that it was about looting and not protesting. When the Proud Boys and other pro-Trump groups arrived in Washington, D.C., a shift in police reaction and rhetoric angered many and highlighted the disparity in the way protestors are handled depending on what they look like and what causes, and perhaps more importantly who, they are supporting.

Complex and deeply personal to each person in this country, the debate on how people in the United States should express their views has always been, in itself, a part of who we are as a country. Our First Amendment rights invite debate with our government and, importantly, dissent to the majority opinion. The breach of the U.S. Capitol building may have seemed brazen and paralyzing to many watching it, but in hindsight, it may be the logical course of events in a country where a leader contributed to decimating trust in our democracy. But, in the aftermath of the events on January 6, 2021, it seems dire to address, factually, the ways we express grievances to our government, and name when that expression no longer honors the values and intent of our Constitution. Those who walked up the steps of the Capitol building, even those who simply passed the first barricade were not the first to step past the boundaries of what the Constitution protects under the First Amendment. Their violent trespassing, many of them armed and with an intent to harm elected officials, was far outside of the bounds of free speech protected by the First Amendment.

Earlier, at a protest on December 12, 2020, Trump supporters openly burned a Black Lives Matter flag taken from the Asbury United Methodist Church, a historic Black church. Proud Boys leader Enrique Tarrio, who admitted to burning the flag but later pleaded not guilty, faces destruction of property charges and was ordered to stay out of Washington by a judge. The D.C. police department labeled the burning of the flag a potential hate crime.

In the District of Columbia, hate crimes such as this act as an enhancement of the crime committed. Under D.C. Statute §22-3703, Bias-Related Crime Act, a person found guilty of a bias-related crime will be fined or imprisoned up to one and a half times the maximum fine or designated term. A bias-related crime means that a criminal act demonstrates the accused prejudice toward a victim. The statute covers a multitude of bases for the accused’s prejudice, including race, color, religion, and political affiliation. While the statute specifies a limited amount of crimes, Aboye v. U.S. established that the term “designated acts” means any criminal act under D.C. law. Therefore, anyone who commits a crime in D.C. that demonstrates their prejudice against the victim of that crime can be charged with an enhanced sentence under §22-3703.

Looking specifically at the actions of the Proud Boys and Enrique Tarrio on December 12, bias-related crime charges could be brought. If it can be established that burning the Black Lives Matter flag demonstrates Tarrio’s prejudice to the actual or perceived race, color, religion, or political affiliation of the Asbury United Methodist Church, Tarrio could be charged with a bias-related crime. However, the crime must not have been committed but for the prejudice. (Lucas v. United States) The prosecution would need to show that Tarrio would not have burnt the Black Lives Matter flag but for his prejudice. While this is a decision left to the discretion of the prosecutor, the potential legal repercussions of burning a Black Lives Matter flag are important to highlight.

While the public debate may often rely on the morality and the nation’s values relating to how we protest, there are legal realities involved that cannot be ignored. The violent attack on the Capitol was not the first, and most likely will not be the last, time that white supremacists and other pro-Trump groups claim Constitutional rights to excuse their criminal actions.

The Constitution does not protect all expression nor does it protect violent actions, as a long history of legal debates have proven. Many states have enhanced penalties for bias-motivated crimes, many that have been challenged for violating the First Amendment. The D.C. Bias-Related Crime Act was upheld as constitutional to the extent that it provides an enhanced penalty for crimes that an individual commits against a victim simply due to their own prejudice against the victim’s protected characteristic (Lucas v. United States).

The First Amendment protects many forms of expression but it does not protect criminal expressions of prejudice against another’s protected characteristics. The precedent concerning what expression is protected by the Constitution is vast and the decisions of the Supreme Court of the United States serve to uphold the intent of the Constitution over what many may consider to be justice for those harmed by certain type of expressions. The Proud Boys and those who claim that they are seeking to uphold the values of our country may claim to be within their rights and to be fighting for our nation, but their actions are not protected by the very Constitution they claim to be protecting. While we as a country should and will continue to debate the nuances of protests and their aftermath, we should also continue to do the work of understanding what we are truly debating – when does our expression of disagreement step past what our national conscience believes should be protected? And why?