Protecting our right to protest


Our nation has a long history of boycotting those whose actions offend us. We are, after all, primarily a coffee-drinking country today because “taxation without representation” protesters decided to boycott tea.

Will we soon lose our ability to boycott or be penalized for doing so? The ACLU (American Civil Liberties Union) has asked the Supreme Court to take up the Arkansas Times’ v Waldrip case in response to the Arkansas state law that requires government contractors to pledge not to boycott Israel or reduce their fees by 20 percent.

Arkansas’s law is just one of many – 35 as of 2021 – where states have passed bills and issued executive orders designed to discourage boycotts of Israel.

A teacher in Kansas, an attorney in Arizona, and a child speech pathologist in Texas, are just three examples the ACLU has offered thus far of individuals who have had their livelihoods threatened by their refusal to sign an anti-boycott agreement.

More worrisome to many of us is that Dickinson, Texas (briefly) required hurricane victims to sign a no-boycott agreement to receive disaster relief funds. The ACLU came to the defense of these victims with: “The Supreme Court ruled decades ago that political boycotts are protected by the First Amendment, and other decisions have established that the government may not require individuals to sign a certification regarding their political expression in order to obtain employment, contracts, or other benefits.”

Now the Eighth Circuit Court of Appeals has upheld an Arkansas Law restricting the right to boycott after determining that the First Amendment does NOT protect “the purchasing decisions at the heart of a boycott.”

Their decision seems to rest on the premise that one “ … can’t know the meaning of a decision not to purchase from a business unless it is accompanied by speech.” Thus, the boycott itself is not protected and the state is free to single out and penalize the boycotts it disfavors.

I cannot help thinking about how that interpretation could have affected the Civil Rights movement in the 1960s. What would have happened if Alabama had outlawed boycotts against municipal buses or segregated businesses?

But it’s not just boycotts. The ACLU has pointed out that that type of reasoning could also affect when, where, and how we can protest. After all, one cannot know the meaning of a group of people walking together in solidarity or even standing, heads bowed in silent prayer, unless those individuals are accompanied by signage and/or verbal speech.

Back in the days when our grandmothers and great-grand-mother picketed the White House as “silent sentinels” they stood quietly holding signs that said things like, “Mr. President, how much longer must we wait?” Could they have been stopped under a similar interpretation? Or perhaps just required to restrict their signage to only those explicit about what they opposed/supported?

I’ve also seen more than a few modern day protests on news programs where I don’t think those protesting could have met the standards required for signage and speech under the Eighth Court’s decision.

Does someone wearing a Handmaid’s outfit or someone holding a “Let’s Go Brandon” sign adequately express what they are protesting? What about polo shirt wearing, Tiki-torch carrying white nationalists chanting, “You will not replace us?” What will be the standards imposed and who will be imposing them?

Swords tend to cut both ways and so do laws. It is difficult to restrict the behavior of those you oppose without also restricting the behavior of your own supporters. Thus, those currently in favor of this legal interpretation may change their minds when they run headfirst into a brick wall of their own making.

But will it actually get to that point?

We freedom-loving Americans have a long history of adapting to any attempts to restrict rights and freedoms that we have grown to take for granted. There’s a good reason why Twisted Sister’s song, “We’re Not Gonna Take It” is frequently used by activists on both sides of a political divide.

If we feel wronged, we are going to do something about it whether it’s drink coffee instead of tea or throw crates of tea off a ship in Boston’s harbor.

I fear there’s a strong likelihood that the Supreme Court will uphold the Eighth Court’s finding because this Supreme Court has already proven itself far more vested in protecting the interests of big business and state governments than in preserving the rights of individuals.

When and if they do, I hope that some of our more innovative and peace-minded citizens will devise ways of getting around these laws. After all, we were once a colony of tea drinkers. We are now a nation where coffee is our most popular drink.

A lifelong resident of Hancock County, Linda Dunn is an author and retired Department of Defense employee.