By DOUG SHAVER
February 18, 2021
I thought we'd see lots of riots on the day after the election, no matter who the winner was. I was mistaken, and I'm glad I was. However, I have seen no reason to think I was mistaken about the passions what would have motivated the riots. They were not expressed in the way I was expecting, but they are still there. The war continues. It remains more metaphorical than literal, but people are suffering no less on that account.
There was that incident at the Capitol on Jan. 6, and the mainstream press would have us think it was all Donald Trump's fault. He had, after all, been telling his followers for four years that there was no way he could lose a fair election. But, he lost the election, and therefore the election was not fair, and so his opponents must have stolen it from him.
OK. But what the mainstream press is not seriously asking, so far as I can tell, is: Why do about half of the American people believe his nonsense? The man himself may be the world's sorest loser, but there is no rational way to blame him for the close-to-universal distrust in the nation's electoral system.
Because it isn't just the Trumpists who think the system is rigged against them. Their analogues on the left think it is, too. They think that if the system were fair, Bernie Sanders would be president now. And before anyone says, "But at least they're not rioting," may I suggest that that is only because when leftists do it, none dare call it a riot. They instead call it a "mostly peaceful protest."
At his second impeachment trial, Trump's advocates claimed he was just exercising his First Amendment right to free speech, but they were begging the question at issue. The courts have consistently held that, even if the Constitution does not explicitly say so, there have to be some exceptions to the guarantee of free speech. Whether the president's remarks should have been excepted is not my concern here. Maybe he was doing the equivalent of shouting fire in a crowded theater, but 43 Senate Republicans decided that either he wasn't or they didn't care whether he was, and according to the rules of our political game, their votes sufficed to acquit him.
But the principle remains, though: Your behavior is neither morally nor legally acceptable just because you say, "I'm only exercising my rights as an American citizen." And that is because the statement is not true just because you say it. The key term here is the word "only." You can exercise your own rights all you want, but when your behavior impinges on the rights of other people, you are no longer only exercising your own rights.
Political demonstrations such as last summer's protests seek to combine speech and public assembly into an act of petition for redress of grievances, all of which are protected by the First Amendmentment. What the amendment protects, though, is "the right of the people peaceably to assemble"—emphasis on "peaceably." That would be "peaceful" in the modern idiom. So the government may, without violating anyone's rights, prohibit an assembly that is not peaceful. We may then ask what is necessary for an assembly to become non-peaceful.
The mainstream press seems to have reached a consensus that a protest is peaceful as long as it is nonviolent, i.e. nobody is being killed or injured, and that this is to be guaged by amount of time during which people were being killed or injured. And so, if a protest goes on for six hours and ends with a five-minute exchange of gunfire in which someone is shot, then it was a mostly peaceful protest.
I'm pretty sure that that isn't what the nation's founders were thinking when they wrote the First Amendment.
We are not living in peace just because nobody is attacking us right now with deadly weapons. We have always had laws against conduct called "disturbing the peace" or "breach of peace," and most of the activities they prohibit are technically nonviolent. Their justification seems to have some connection with everybody's right to the pursuit of happiness. I may not have a right to actually be happy, but my neighbor is not entitled to make me unhappy by playing his music so loudly that I cannot enjoy listening to the music that I prefer.
But now, what if my neighbor says, "Hey, I cannot enjoy my music without playing it at full volume"? Well, if we're both reasonable people, we ought to be able to negotiate some arrangement under which we can both pursue our separate happinesses. If that cannot happen, maybe because one of us is not so reasonable, then the reasonable one might have to take the other to court. The point is, there is a law to deal with such a situation. I have a right to some peace and tranquility, and the law requires my neighbor to show some respect for that right.
And what does that have to do with political protests? It has to do with the way those protests can disturb the peace of the community where they happen, even if the protesters are causing no bodily harm to anyone.
If I have legitimate business to conduct either downtown or in some neighborhood and cannot get there because protesters have blocked the streets, then my peace has been disturbed. My personal peace, it could well be argued, counts for nothing against the grievances of protesters. Very well, but I cannot be the only one whose peace has been disturbed when protesters disrupt the normal flow of traffic, either vehicular or pedestrian, in a community.
And that is if they only block the streets. I have been following a podcast by two people who live in Portland, Ore., where the protesters last summer were apparently doing a lot more to disturb the peace than just preventing people from going to places where they have a right to be. They were causing massive property damage and forcing businesses to shut down, to say nothing of making many of the city's residents fear for their physical safety. Similar activities were going on last summer in several other large cities over periods ranging from a few days to several weeks, and they happened on one night in my own city.
None of this is protected by any reasonable interpretation of the First Amendment, but it all gets a pass from the mainstream press because the protesters are advocating for a cause that most professional journalists happen to support.
We were told, even while the Capitol riot was happening, that the response by law enforcement agencies would have been very different if the mob had represented BLM rather than Trump supporters. That is surely plausible. And it is at least as plausible—virtually certain, really—that the media coverage would have been very different as well. We would have heard little if any talk about attempts to interfere with the democratic process.
The point is not about which side has the more legitimate grievances. The point is that neither side is using legitimate methods to effect a remedy to its grievances. Our nation's founders set up a system to provide those methods. Now, the system pretty obviously is not working well, and so it pretty obviously needs some fixing. But the only fixes that can do any good will require a recommitment to the Enlightenment values that informed the decisions our founders made when they wrote our Constitution. Absent that recommitment, we might postpone the serious bloodshed for a while longer, but we will not avoid it.
Next: Gaslighting
(This page last updated on February 22, 2021.)