Protesting Trump’s Inauguration

Massive preparations are underway here in the District of Columbia for Donald Trump's inauguration. Temporary fencing is going up along with bleachers and roadblocks. In addition to thousands of well-wishers, thousands of protesters are expected. It will doubtless be an unforgettable day. 

It is worth remembering that before Mr. Trump can take any official action whatsoever, he must first take an oath to support and defend the Constitution. There are many other checks and balances in our system, but the oath of office is supposed to be the first line of defense. Mr. Trump can use the bully pulpit (and his Twitter account) to respond to his critics, but he must respect their right "to peaceably assemble, and to petition the Government for a redress of grievances," as the First Amendment makes clear.

Can you imagine the outcry if Mr. Trump were to threaten to arrest protesters at his inauguration? It would be deafening—and fully justified. And yet, if you can believe it, there have been previous attempts to do just that. We should remember such episodes in our history.

In January 1997, Rev. Patrick Mahoney and a few other anti-abortion protesters planned to demonstrate along the sidewalks adjacent to President Bill Clinton's inaugural parade route. When word got around about these modest plans, something had to be done. Mahoney and his Christian Defense Coalition received oral and written warnings that they would be arrested if they proceeded with their small protest. Shocked by such threats, Mahoney went to court to seek an emergency injunction to protect his group's constitutional right to protest on the big day: January 20, 1997.

It soon became apparent that this story was bigger than a low-level bureaucrat trying to intimidate some guy that didn't have any political connections. Attorneys trained at our best law schools arrived in court to double down. Yes, the local U.S. Attorney admitted, Randall Myers, counsel for the National Park Service, had informed Mahoney that his people wouldn't be arrested if their signs offered congratulations to Clinton, but they would be arrested for signs containing any criticisms of Clinton. This blatant discrimination between viewpoints could be justified, said the local U.S. Attorney.

The Court of Appeals was pretty flabbergasted by such claims. Here is an excerpt from the unanimous ruling: "[A]ll constitutional authority supports the position we would have thought unremarkable, that a government entity may not exclude from a public forum persons who wish to engage in First Amendment protected activity solely because the government actor fears, dislikes, or disagrees with the opinions of those citizens. None of the authorities offered by the government is to the contrary. Indeed, none is on point." Ouch! That's a body slam in legal circles. And a well-deserved one.

Let's fast-forward to recent news. Since Mr. Trump's election, the left has been busy with plans to organize a resistance movement. California Assembly Speaker Anthony Rendon has promised to "lead the resistance to any effort that would shred the social fabric of our Constitution." It was recently announced that California has retained former Attorney General Eric Holder to defend the Constitution from the Trump administration. That was not a wise move. In 1997, Holder was the U.S. Attorney in the District of Columbia. He was the one who tried to justify arresting protesters that were critical of President Clinton. If Holder is the Constitution's defender, we're in big trouble.

One of the reasons that our Bill of Rights is in trouble is because there are not many people or organizations that make a principled defense when it is attacked. Let's resolve to do better going forward.

For related Cato scholarship, go here, here, and here.