Judge Andrew Napolitano: Portland protests are about dissent, and without dissent we'd have little freedom

Two weeks ago, this column offered a brief history of the freedom of speech in America. The essence of the column was that all public speech is lawful when there is time for more speech to challenge it and that the remedy for hate speech is not censorship, but more speech.

Last week, this column addressed the unconstitutional behavior of federal agents in Portland, Ore., most of whom are out among peaceful demonstrators interfering with free speech, travel and assembly.

Also last week, a newspaper in New Jersey, the editors of which might have disagreed with the essence of this column -- that the First Amendment requires the government to protect political dissent and prohibits interfering with it -- published my column with the two and a half most important paragraphs removed.

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Was I disappointed that a column that was represented as mine had such a substantial portion missing that the printed version failed to make its point? Yes. Anyone would be. Newspapers should not be in the business of censorship.

Neither should the government.

The federal forces in Portland are doing far more than protecting a federal courthouse. They are listening to people’s phone calls and capturing their text messages and emails without warrants. They are materially interfering with lawful dissent.

It is one thing to build a wall or a fence around a courthouse and man it with armed guards. It is quite another to wade into a crowd of peaceful demonstrators with tear gas of such intensity and ferocity -- its active ingredient is 2-chlorobenzalmalononitrile -- that it is prohibited in wartime by treaties to which the United States is a signatory.

Here is an eyewitness account of events in Portland last Friday night from Marissa Lang, a Washington Post reporter:

“The tear gas started early Friday night, interrupting a line of drums and dancing, chanting protesters, an artist painting in oils underneath a tree in the park and a man with a microphone speaking about the issues of racial justice and policing at the center of these nightly demonstrations.

“‘Hey guys, don’t panic, don’t panic,’ the man said from the steps of the Multnomah County Justice Center, one block over from the federal courthouse in downtown Portland. ‘All you first-timers out here, it’s just tear gas. Everybody just relax.’

“As if on cue, a brigade of orange-shirted men with leaf blowers descended on the cloud, revved their engines and blew the tear gas away. The crowd cheered.

“‘Thank you leaf-blower dads!’ shouted a young woman.”

This chemical can burn skin, permanently damage eyes and lungs and even cause death. It is unleashed every night, “repeatedly and for hours.” Why would any government in a democracy that claims to derive its powers from the consent of the governed unleash this deadly agent on anyone?

Here is the backstory.

The federal government -- which originally claimed that COVID-19 was a hoax -- is losing the public relations battle over the pandemic. It was too late to the game to claim leadership. Now, after nearly 150,000 deaths, a politically induced recession -- which the same feds who are suppressing speech foolishly think they can cure by borrowing and spending $4 trillion in four months -- and a myriad of confusing, conflicting and unlawful state regulations of personal behavior, the feds want to change the subject.

Will federal forces in Portland change the subject?

Yes, for a while, particularly when the government breaks its own laws. Try as the government has, it simply cannot find any lawful basis for the presence of its forces on Portland’s streets. They have assaulted without provocation and arrested without warrants or probable cause. That’s called kidnapping.

Are they military? They look and act and are armed as if they are, but the feds claim the Department of Homeland Security, not the Department of Defense, employs these forces. Does that make a legal difference?

The Constitution and federal law prohibit the introduction of the military into domestic law enforcement unless requested by the state legislature or the governor. Both the Portland mayor and the Oregon governor have asked the feds to go home.

The Constitution also guarantees the concept of federalism. When the Supreme Court last looked at that issue in 1997, the late Justice Antonin Scalia wrote that the federal government cannot interfere with the discretion of state officials to spend state tax dollars and deploy state assets as they wish; nor can it commandeer state functions.

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If putting hundreds of military-garbed armed forces onto public streets against the wishes of local and state officials and attempting to take them over from local police does not violate the constitutional guarantee of federalism, it is hard to know what does.

This business in the Portland streets is about dissent. Dissent is integral to our humanity and culture. This country was born in dissent. It often irritates, and those in power loath it. But without it, we’d have little freedom and no protection from the tyranny of the majority.

John Stuart Mill argued that if all the world but one person were of the same opinion, the world would have no more right to silence the one than he -- if he had the power -- would have to silence the world.

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I may disagree with what you say, but I will defend to the death your right to say it. When Voltaire was reputed to have written those words, dissenting speech was punishable by death. In America, the Supreme Court has ruled, the government must give dissent breathing room. In Portland’s streets, the feds are trying to make it impossible for any but their own to breathe.

Only a government hateful or fearful of the people it claims to serve uses force to silence them.

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