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.”
Leonard M. Niehoff, a professor from practice at the University of Michigan Law School who specializes in the First Amendment, spoke with Salon by email about Pompeo’s remarks. After noting that they were not specific enough for him to ascertain what if anything President Donald Trump is considering doing to TikTok, Niehoff argued that “to the extent that he’s suggesting a complete ban on a social media platform that is used by United States citizens to communicate with hundreds of millions of people worldwide, the proposal raises grave concerns under the First Amendment.” He acknowledged that people have accused TikTok of being a form of spyware and added “it’s difficult to assess the constitutionality of the measures without knowing exactly what the government wants to do and why it wants to do it.”
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.
There have been a few other examples of American laws that attempt to restrict doctors’ speech, according to sociologist Carole Joffe, but most have been struck down by the courts for violating the First Amendment.
Joffe, a professor at University of California, San Francisco who studies abortion, points to a 2011 Florida law that attempted to prevent doctors from asking their patients about whether they own guns.