After the Lafayette Park operation, Bowser declared that “if you are like me, you saw something that you hoped you would never see in the United States of America.” Now, her government is arguing not only that the protesters’ claims should be dismissed but that the district did and can continue to use tear gas in such situations, even to enforce a curfew.
In the meantime, the Biden administration agrees that the case should be dismissed entirely. The Department of Justice (DOJ) maintains that “Presidential security is a paramount government interest that weighs heavily in the Fourth Amendment balance.” The DOJ’s counsel, John Martin, added that “federal officers do not violate First Amendment rights by moving protesters a few blocks, even if the protesters are predominantly peaceful.”
House Speaker Nancy Pelosi (D-Calif.) and Rep. Earl Blumenaur (D-Ore.) released a joint statement Saturday evening condemning what they said were “egregious abuses of power” after the Trump administration deployed federal officers to Portland amid protests.“
As our nation mourns the loss of our colleague and beloved civil rights leader John Lewis, we are again reminded of the immense power of peaceful protest in the fight against racial injustice and police brutality,” the congressional duo said.
“Yet time and time again, the Trump Administration shows its lack of respect for the dignity and First Amendment rights of all Americans.”
“This Administration has undermined the First Amendment freedoms of Americans of all races who are rightfully protesting George Floyd’s killing,” the members wrote. “The deployment of drones and officers to surveil protests is a gross abuse of authority and is particularly chilling when used against Americans who are protesting law enforcement brutality.”
In particular, current and former government officials have repeatedly worried that officially designating a U.S.-based group as a terrorist organization could have significant First Amendment consequences.
The First Amendment protects the rights of Americans who like spewing “hateful speech” and “assembling with others who share the same hateful views,” so “unless an organization engages solely in unprotected activity, such as committing crimes of violence, any designation of a (U.S.-based) organization as a terrorist organization … would likely run afoul of the First Amendment,” Mary McCord, the former head of the Justice Department’s National Security Division, told a House panel in January.
It is unclear whether the president is legally empowered to compel the nation’s governors to take such an action. If the White House moves to enforce his order in defiance of opposition by local officials, Trump could force a constitutional clash over one of the fundamental freedoms enshrined in the First Amendment.