Felony Charges Suppress Free Speech
On Wednesday, September 17th, six community organizers were arrested on felony charges in Denver, Colorado. The six – Lillian Rose House, Joel Prentice Northam, Eliza Lucero, Trey Anthony Quinn, John Russel Ruch, and Terrance Terrell Roberts – were arrested in connection for their involvement in protests in Aurora, Colorado, the city where Elijah McClain was killed over one year ago. Four of the six protestors are affiliated with the group, The Party for Socialism and Liberation, as PSL organizers.
The charges range from felony theft, attempted first-degree kidnapping, inciting a riot, inciting a riot by giving command, attempt to influence a public servant and a number of other felony and misdemeanor charges. Combined, the six organizers face 33 felony counts and 34 misdemeanor counts, each carrying multiple year sentences if convicted.
District Attorneys Dave Young of the 17th Judicial District and George Brauchler of the 18th Judicial District allege the charges stem from a July 25th protest where thousands of people marched on a highway. On that day, a jeep drove through the crowd and a protestor shot at the jeep, ultimately wounding people on foot. District Attorney George Brauchler has declined to pursue criminal charges against the driver of the jeep. The kidnapping charges stem from a July 3rd protest wherein protests gathered around a Aurora police substation which hosted 18 police officers at the time. The felony theft charges were levied against two organizers when they allegedly grabbed signs from counter protestors.
Included in the indictment were social media posts from other area organizers who did not face charges. These organizers argued their social media posts were used as a means of intimidation to illustrate that they, too, were being watched by the police. House, Northam, Lucero were not released from custody on bond until Thursday, September 24th, more than a week after their arrests.
The latest arrests in Denver illustrate the way the government utilizes criminal penalties to quell political speech and circumvent protestors’ rights.
Protestor Rights
Generally, protesting is protected by the First Amendment under the right to free speech and the right to symbolic speech. However, there are several limitations on that right. Protestors are generally free to gather on “traditional public forums,” such as streets, sidewalks, and parks. Additionally, protestors can organize on public property as long as it doesn’t block access or interfere with the purpose of the property. Protest organizers do not need to apply for a permit as long as marchers do not obstruct car or pedestrian traffic.
However, the Supreme Court held in Brandenburg v. Ohio (1969) that organizers are not protected against incitement charges where they direct or incite imminent lawless action and their speech is likely to produce such action. Additionally, under Feiner v. People of State of New York (1951), police can clear a protest when it presents a clear and present danger of violence or “immediate threat to public safety, peace, or order.”
Weaponizing Felony Charges to Quell Political Speech
Prosecutors have used felony charges across the country to quell political speech and intimidate organizers from organizing protests to broadcast racial and social inequalities. In New Jersey, a protestor was charged with cyber-harassment, a fourth-degree felony, after posting a photo of an officer online. Four other individuals who retweeted the photo were also charged with felonies. In Florida, a Black Lies Matter organizer is charged with strong-arm robbery and escape, both felonies, for allegedly removing Trump flags fixed to vehicles. In Utah, protestors are facing a life sentence after being charged with felony criminal mischief with a gang enhancement after allegedly throwing paint on a building.
Even the administration of felony charges has been inequitable and racist. In New York, White people made up 44% of the 2,000 arrests but only 3% of those arrested faced felony charges. Meanwhile, Black people comprised of 39% of arrests but 16% were charged with a felony. Latinx people made up approximately 13% of arrests and 8% were charged with felonies.
The use of felony charges against protestors has been applauded at the federal level. The Justice Department sent a memo encouraging federal prosecutors to aggressive charge demonstrators who cause violence, property or otherwise. The memo even applied that the sedition charges could be utilized, implying the protestors could be arrested for committing treason by conspiring to overthrow the government.
Now, the same suppression tactics are weaponized against Denver protestors. The Party of Socialism and Liberation are calling on Brauchler and Young to dismiss all charges against the Elijah McClain protest organizers. Regardless of their decision, it is clear that the target of political speech is happening even at home.
If you or someone you know is facing criminal charges as a result of participating in a recent protest, please contact Baker Oliver Simpson Law for a consultation.