« Prior restraint: How far have we really come? | Main | An AEDPA Sum Rev on Circuit Precedent and "Clearly Established" Law »

Tuesday, November 18, 2014

You can't have it both ways

Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”

Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.

This does not end well.

Posted by Howard Wasserman on November 18, 2014 at 09:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

Comments

I don't follow, Howard. The FBI has an internal bulletin in which they tell field offices about potential events or disruptions. The bulletin tells the FBI field offices of a likely disruption, specifically (as I understand it), a likelihood of attacks on law enforcement. The bulletin also stresses the importance of complying fully with the constitution. How are the two points inconsistent?

Posted by: Orin Kerr | Nov 19, 2014 4:05:14 PM

We're already seen news heicopters blocked from the airspace, but no commercial flights.

Posted by: Barry | Nov 19, 2014 6:52:28 AM

Howard, just what would you have the FBI do? Not send out any notice? Send out the warning but leave out the language about freedom of speech and assembly? Please provide us with your all knowing solution to this.

Posted by: PaulB | Nov 18, 2014 11:35:17 PM

Post a comment