Trump and Barr Violated Free Speech for a Photo Op

(Bloomberg Opinion) -- Did President Donald Trump’s administration violate the First Amendment on June 1 when various police and other security forces tear gassed peaceful demonstrators in Lafayette Square park so the president could walk to St. John’s Church for a photo op? That is the central question in a lawsuit brought over the weekend by the Washington, D.C. chapter of Black Lives Matter and a number of individual protesters.

The answer is almost certainly yes. And the lawsuit is extremely important, not because the plaintiffs will necessarily prevail, but because it is the best and maybe only way to prevent such a blatant constitutional violation from happening again just steps from the White House.

Like most people, I followed the events of the evening of June 1 on television. The Trump administration may eventually offer a different version than the one we saw. For now, however, it’s reasonable to assume a set of facts pretty close to those alleged in the lawsuit.

Essentially, Lafayette Square, directly across from the White House, was full of peaceful protesters. They were exercising their First Amendment rights in a public park, which the courts consider to be the very model of a “traditional public forum” where free speech rights are at their peak.

Just after 6 p.m., a large number of armed law enforcement and military gathered around the park. The lawsuit alleges that they included “at least” U.S. Park police, Arlington County police, U.S. Secret Service, D.C. National Guard, and military police from the 82nd Airborne Division of the U.S. Army. Trump had apparently tasked Attorney General William Barr with commanding this wide range of police.

There have been divergent accounts of whether Barr gave a direct order to clear the park. In his own rather extraordinary statement, Barr claimed that “my attitude was get it done, but I didn’t say, ‘Go do it.’” Probably the most astonishing aspect of the statement was his literary reference to the murder of Thomas Becket in 1170, which according to legend was triggered by Henry II asking, “Will no one rid me of this turbulent priest?” It was as if Barr didn’t quite realize that Henry II was in fact responsible for that decision.

At around 6:30 p.m., police cleared the park using, according to the lawsuit, “flash bang shells, tear gas, smoke canisters, pepper balls, and/or rubber bullets.” Shortly thereafter, Trump made his not very triumphant procession across the park.

Subsequently, Barr has claimed that there was no connection between the decision to clear the park and Trump’s walk to the church. The claim is, to put it mildly, implausible.

The suit alleges that Trump targeted the specific protesters in the park for their viewpoint, in clear violation of the First Amendment. As evidence, it points out that just days before, Trump had declared “MAGA night” at the White House, apparently encouraging pro-Trump protesters in the very same park.

If the court determines that the protesters were cleared because of their viewpoint, that is an unquestionable violation of the First Amendment. And it is a violation of clearly established law, which is a necessary prerequisite for holding government officials liable for violating constitutional rights. (The doctrine of “qualified immunity” holds, roughly, that government officials can’t be sued for official acts unless they knew those acts violated clearly established law.)

What’s more, even if it cannot be proved that the protesters were removed because of their viewpoint, it still violates the First Amendment for the government to remove peaceful protesters just so the president can go for a theatrical walk. The government is permitted to impose reasonable time, place, and manner restrictions on protesters. But it isn’t reasonable to disperse peaceful protesters on a moment’s notice so that the president can make a political statement. Doing so is a violation of clearly established law. That’s probably why Barr is now trying to deny any connection between the park clearance and the president’s evening stroll.

Of course, there are circumstances in which the president needs to get from one place to another, and crowds need to be moved to guarantee his safety. That’s perfectly constitutional. But it strains belief to argue that this happened here.

It’s also true that, because Lafayette Square is directly across from the White House, the government might be justified in adopting regulations in that park to increase the safety of the White House. But no such regulations appear to have been in play on June 1. The protesters seem to have been peaceful, and therefore not to have posed any threat to the White House.

There are also various procedural hurdles that the suit will have to overcome, usefully summarized here, to win money from government officials or police. But that’s not what’s most important.

What is crucial is that a court explicitly determine that neither the president nor anybody else can disrupt peaceful protests in a public forum using force — and that political theater is no excuse.

Trump likes to present himself as a champion of First Amendment free-speech rights. The outrageous events of June 1 prove otherwise.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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