What about first amendment?

January 22, 2005

Given a jury's acquittal this week of eight leaders of a protest that blocked Denver's Columbus Day parade, we're surprised at the city's decision to proceed with trials of more than 200 others arrested in last year's event. Juries might convict some of them, but it hardly seems fair for protest leaders to get off scot-free while others are treated more harshly.

If officials are serious about protecting the rights of future parade participants - as they clearly are - they should be asking City Council to pass an ordinance making it an offense to "knowingly interfere with a permitted parade." There is no such offense on the books, meaning the city attorney's office had to prove protest leaders heard police orders that they refused to obey. But the defendants insisted they couldn't hear the orders above the din.

If jurors believed them, that would be a genuine basis for acquittal. Unfortunately, it appears jurors were also swayed by less creditable arguments - arguments that if universally applied would effectively repeal the First Amendment.

Defense attorneys argued that the parade was a form of ethnic intimidation because participants knew Columbus represents a fearful symbol of violence and oppression to Native-Americans, and an incitement against their welfare. Since ethnic intimidation is illegal under Colorado law, protesters had a public duty, the argument goes, to stop the parade and prevent an illegal act.

By that logic, of course, it's hard to see how any activity, speech or symbol that offends any person or group because of "race, color, ancestry, religion, or national origin" could long survive. And yet organizations representing a wide array of ethnic and religious groups issue edicts every day denouncing as outrageous some treatment of their history or representation of them in popular culture.

The implications for the entertainment industry alone are profound. Italian-Americans sometimes resent GoodFellas-type stereotyping of them in films and TV. Arab-Americans have denounced such films as The Siege. The Catholic League for Civil and Religious Rights rails against a long list of films, not to mention comics such as Bill Maher, for engaging in what it considers anti-Catholic vitriol. The Anti-Defamation League declared Mel Gibson's The Passion of the Christ anti-Semitic. By the logic of the anti-Columbus Day defense, why shouldn't aggrieved groups be free to storm into a theater or Blockbuster and shut down a screening or halt sales of DVDs to prevent " ethnic intimidation" - so long as they remain non-violent?

Interestingly, one of the defense attorneys, David Lane, freely told us the state's ethnic intimidation law may be unconstitutional - which it most certainly is if the jury acquitting the protesters applied the law correctly. Whatever the constitutionality of the law, however, it is a sad day for free speech when a jury signals there is no First Amendment right to hold an unmolested parade in Denver.

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