Police riot police protecting the peace of the city
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In his great dissent in Abrams v. United States, written 102 years ago amid another sedition threat, Supreme Court Chief Justice Oliver Wendell Holmes issued his clarion call for a vigorous First Amendment based on the free marketplace of ideas. He included this caveat: “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

An imminent threat of immediate interference with the law: That’s precisely where we are in the wake of the insurrection at the Capitol last month. We all have a First Amendment right to speak and to assemble. We all have a right to take to the streets so long as we are peaceful and compliant with laws designed to protect and promote the public good. The government cannot prosecute or otherwise punish us for these actions. Black Lives Matter protesters have this right. White supremacists have this right. Police officers, too.

But none of the individual freedoms enshrined in the Bill of Rights come to us without limitations. In the case of police officers and the First Amendment, these limitations are both reasonable and necessary. They balance the interests of officers to express themselves on political issues of the day with the interests of police departments (and the rest of us) to have confidence that our police officers are willing and able to perform their official functions without fear or favor.

Of course, off-duty police officers had the right to go to Washington, D.C. to take part in the pro-Trump rally on January 6th designed to pressure lawmakers to ignore the results of the free and fair presidential election. And the rest of us have the right, indeed the obligation, to evaluate what the exercise of that right by those cops says about their professional judgment and their commitment to upholding the law. Some of these cops will lose their jobs because they took part in yet another Trump rally qua riot fueled by the equivalence of junk science. Some should.

We don’t yet know how many police officers attended the Trump rally on January 6th. The Washington Post reported the count was “at least 13,” but the number is surely much higher. We know that serving officers went to the capitol to, at a minimum, protest the results of the election and we know that sheriffs did too. We know that some of these law enforcement officials have already been suspended or charged. And we know that they have wrapped themselves in the First Amendment and claimed they were merely exercising their rights as private citizens.

That narrative has spread across the nation, even as we learn more about the extent to which cops were involved on January 6th. “We are making clear that they have First Amendment rights like all Americans,” Houston Police Chief Art Acevedo said last week when he accepted the resignation of an 18-year veteran of the department who was involved in the Capitol riot. “However, engaging in activity that crosses the line into criminal conduct will not be tolerated.” The problem is that Acevedo’s first sentence is simply not true. Even when they are off duty, case law tells us that police officers don’t have the same First Amendment rights as civilians.

Public employees, including law enforcement officers, can be held responsible for speech that would have stronger constitutional protections were it uttered by a civilian. This is especially so where the speech undermines core functions of the government agency for whom the employee works.

Some of the police officers who participated in the Trump rally-turned-riot may be fired for their roles in the insurrection (whether they are prosecuted or not). And some may sue their departments for retaliation, arguing that they were unconstitutionally dismissed. Those lawsuits will likely turn on how judges apply a legal balancing test that weighs the officer’s right to speak versus his employer’s right to have a police department that doesn’t include in its ranks conspiracy theorists who embrace baseless allegations that are used to foment insurrection.

“The courts have long recognized that public employees have a First Amendment right to participate in public debates on important matters. However, government employers may punish employees whose speech, even outside of work, compromises their ability to do their job,” Ben Wizner, director of the ACLU’s Speech, Privacy, and Technology Project, told me via email Monday. “Although each case has to be decided on its own facts, courts have upheld discipline or termination of police officers, who are armed agents of the state, for making statements in their personal capacity that undermine their ability to maintain the trust of the community they serve.”

Let me offer a hypothetical that I think fairly illustrates the issue in the context of the Capitol riot. Pretend for a moment that you are a police chief. A body is found in your town. An investigation ensues. Half the town believes the death is a natural one. Half the town thinks it’s murder. The evidence is collected. It becomes clear beyond all reasonable doubt that the death was a natural one. Scores of judges, of all ideological stripes, say so. So do the witnesses with direct knowledge of what happened to the victim.

In spite of all of this, one of your cops refuses to believe the evidence before him, refuses to respect judicial rulings and witness testimony. Skeptical of objective truths, he’s remarkably unskeptical of the conspiracy theories that tell him the victim was murdered. The judges are in on the scam, this cop believes, and so are the witnesses. The murder was part of a crime so elaborate it involves countless co-conspirators and a level of coordination that beggars belief. No matter, the cop says, he knows what he knows. It was murder.

The cop doesn’t just indulge in this fantasy in his own mind or in his private life. He doesn’t just spread his views at his local bar or a neighbor’s barbeque. He actively participates in the fantasy; he broadens and strengthens it by joining with countless other like-minded conspiracy theorists who travel to Washington, D.C., to take part in a rally centered around the idea that the deceased was murdered. And not just a demonstration in support of that lie but also the dangerous proposition that the people who are saying otherwise—that is, the people whose view of the world is rooted in objective evidence—should be torn from office or killed.

What are you, the police chief, supposed to do about that? Here’s a cop who has disrespected judicial rulings and embraced conspiracy theories with alarming gullibility. Here’s a cop who makes common cause with an angry mob. What do these things say about his ability to separate fact from fiction? Should a jury trust this cop’s credibility on the witness stand?

These are precisely the sorts of considerations the Supreme Court says judges must weigh in evaluating the First Amendment claims of police officers who are fired for off-duty behavior. Assuming the police officers who attended the rally were engaging in lawful speech and not impermissible conduct, does that political “speech” affect public perceptions of the law enforcement agency? Does it undermine the relationship between the speaker and his fellow officers? Does it impede the ability of the department to recruit officers or generate hostile media coverage? The cops who traveled to Washington, D.C. to support baseless election fraud claims won’t be able to avoid these questions if they want to prevail with their lawsuits.

For me, the answers to these questions are self-evident. There should be a presumption of disqualification for any law enforcement officer who went to the Trump rally, whether they participated in the subsequent storming of the Capitol or not. A cop who believed two months after the election that Joe Biden had stolen it should be required to explain under oath why he or she deserves to continue to be a peace officer. A cop who believed that countless state elections officials and federal and state judges were part of a vast conspiracy to defeat Trump must explain why he ever should be able to write a traffic ticket, investigate a crime, or testify under oath as a witness for the government in a criminal case.

Police from all over the country who traveled to Washington, D.C. were not making spur-of-the-moment decisions. These journeys were plotted, planned, and premeditated. They were coordinated. And voluntary.

David Hudson, an expert on free speech at the First Amendment Center, disagrees. He told me by telephone, echoing Wizner, that punishing officers for merely attending the Trump rally, regardless of the conspiratorial theories that led them there, would be an impermissible infringement on those officers’ constitutional rights. “Police officers should not be dismissed generally because of their political beliefs or association with particular viewpoints or such,” Hudson told me. “That said, any police officers who engage in unlawful conduct or rioting should be subject to discipline. They are there to protect and service, not disrupt and riot.”

When police officers exercise their First Amendment rights by revealing themselves to be persistently hostile to verifiable facts, they are telling the rest of us a great deal about their judgment. They are saying they no longer deserve to be tribunes of the law.

Hudson, the free speech advocate, says that the law allows a cop to believe in—and act on—conspiracy theories and still carry a badge so long as his conduct is lawful and appropriate. But a police officer who nurses the fantasy that Donald Trump won the 2020 presidential election doesn’t maintain the capacity for the reasoned judgment necessary to carry out a law enforcement official’s duties. Tell that to the victim who wants her crime solved or the defendant waiting for that conspiratorialist, insurrectionist cop to testify against him.

Andrew Cohen

Follow Andrew on Twitter @JustADCohen. Andrew Cohen, a longtime network legal analyst, is a fellow at the Brennan Center for Justice and a senior editor at The Marshall Project.