Trump protestor trials to begin

This year has been full of momentous appeals -- from the Muslim ban litigation in the 4th and 9th U.S. Circuit Courts of Appeals to the U.S. Supreme Court's upcoming cases about cellphone surveillance and about a bakery's discrimination against a gay couple.

But few people are following the trial with the biggest constitutional implications, a trial that opens Monday in the nation's capital: the Trump administration's felony prosecution of nearly 200 Inauguration Day protestors. Most of the protestors were peaceful and are being prosecuted based on acts of vandalism committed by others. Should the administration obtain felony convictions, the result will be to chill the First Amendment rights of all of us.

On Jan. 20, thousands of Americans took to the streets of Washington, D.C., to exercise their First Amendment rights to express their opposition to the incoming administration. Although only a handful of demonstrators committed acts of vandalism, D.C. police responded with overwhelming force, pepper spraying hundreds of nonviolent demonstrators, journalists and legal observers without justification and without warning, then conducting a mass roundup of more than 200 people based on the actions of the small subset who damaged property.

How did the police decide whom to detain? Not by identifying who had engaged in acts of vandalism. Instead, the police rounded up everyone in the area regardless of their individual conduct. It was policing based on proximity, not probable cause.

The police response was bad enough, and the ACLU of D.C. has sued them for it. But the demonstrators' troubles were just beginning.

The U.S. attorney for the District of Columbia decided to charge virtually all the people the police had arrested with multiple felonies carrying combined sentences that add up to potentially decades in prison. Like the police, the prosecutors appeared to make little effort to determine which protestors actually engaged in property damage -- instead, the prosecutors charged most of the people arrested under a conspiracy theory based on their mere presence, the fact that they were marching to express the same political views as those who broke windows, and their failure to leave the area even though no dispersal orders were given (as the D.C. office of police complaints documented in a February report).

In other words, the Trump administration's legal theory is guilt by association.

A few of those charged have accepted plea deals, but most have elected to go to trial. Opening statements for the first defendants to be tried are scheduled for Monday. Trials for the entire group are not set to end until the latter half of 2018.

At stake in these trials is more than the guilt or innocence of nearly 200 people of conspiracy to riot -- although the consequences for these people will be life-altering. At stake is the health of our nation's commitment to freedom of association, speech, and peaceful political protest. The prosecution of the demonstrators has subjected them to significant hardship, including time spent in court, the cost of repeated trips to D.C. for out-of-town defendants, and the cost of hiring attorneys, not to speak of the terror of facing decades behind bars. Already these prosecutions, in combination of with the overreaction of the police, have sent a terrible chilling message to would-be protestors: when you come out to exercise your right to protest and raise your voice to influence our political system, you take the risk that if someone nearby commits an act of vandalism, you will be subject to detention, police violence, arrest and felony prosecution. Imagine what message convictions would send.

Already people have been chilled. For instance, Elizabeth Lagesse, a defendant in the criminal case who is also an ACLU-DC client in our civil suit against the D.C. police, has continued to attend protests but (as our complaint recounts) "sometimes avoided chanting or carrying a sign because she feared that if she called attention to herself she might be again become a target of police violence." Another of our clients in the civil suit, Milo Gonzalez, who is also charged criminally, "has ceased attending demonstrations entirely because of his fear and anxiety" after what he experienced on Inauguration Day. And Alexei Wood, one of two journalists facing criminal charges, told reporter Baynard Woods: "It took me months to go document another protest. Even the most like, Grannies Against Trump thing, I didn't want to go to. I was traumatized. Absolutely traumatized."

And it's easy to see why -- the policy goals for which most people protest may take time to materialize and may not be achieved at all, but arrest and prosecution can be (as they were on Jan. 20) concrete and immediate. As the Supreme Court has recognized, our First Amendment freedoms need "breathing space ... to survive." Our vital tradition of protest and dissent is not supposed to be reserved for the courageous, but by casting a threatening pall over future protests, prosecutors will scare away all but the bravest from raising their voices.

Whatever your political persuasion, the chilling of political protest is a dangerous development. Although anti-Trump demonstrators are in the dock today, the same laws apply to all of us, and so a prosecutor could just as easily use this sweeping guilt-by-association theory to go after right-wingers. For this case, we must rely on the D.C. trial judge and the jury make sure that peaceful demonstrators aren't convicted for exercising their First Amendment rights at the wrong place at the wrong time. Looking forward, we should continue to raise our voices in protest -- among other things, against overzealous prosecutions that chill the right to protest itself.

In the United States, our robust First Amendment has afforded us the luxury of thinking of the prosecution of political dissidents as something that happens in other, less free places. These prosecutions have demonstrated that it can happen here too.