In the historic World War 2 words of former President Franklin Roosevelt January 6, 2021 “will live in infamy”, as the day of the first home-grown threat to American democracy. It was a day when thousands of American protestors vandalized and violently invaded Capitol Hill to defy, deny, and overturn the legitimate one-person-one-vote-counted 2020 presidential election. So far 310 protestors have been sentenced to prison and 118 protestors have been sentenced to home detention, but there was a January 6 protestor among the Capitol Hill property destruction and the violent attacks on the Capitol Hill Police, who should be eligible to serve no prison time and serve no home detention.
The act of protesting in America is older than the 245-year-old United States of America. 88 years before America’s 1776 Declaration of Independence from Great Britain, the first organized act of protest in America was a written 1688 Germantown Quaker Petition Against Slavery in the then 13 British colonies of America. 85 years later when the British government imposed a tea tax on the 13 colonies, people living in the Boston, Massachusetts colony dumped hundreds of chests of tea from the British East India Company into Boston Harbor, as an act of protest and defiance against the British for imposing taxes on the colonies when they had no representation in the British Parliament, creating taxation without representation.
Protestors dumping the tea into Boston Harbor was the 1773 Boston Tea Party protest, which led to the 1776 Declaration of Independence and the creation of the United States of America. And since dumping the tea into Boston Harbor was the destruction of property technically one could claim America was born out of violent protest. Acts of protest are synonymous with any true democracy, which is why the Founding Fathers included the freedom of speech, the freedom to petition, and freedom of assembly, along with the freedom of the press and freedom of religion, as the 5 freedoms granted to every American citizen in the First Amendment to the U.S. Constitution.
Since the Founding Father’s priority was to grant American citizens the unobstructed freedom of expression, the truthfulness or accuracy of what a citizen chooses to express is not required for their speech to be protected by the First Amendment, the only speech not protected by the First Amendment is speech that threatens life. The best example of unprotected speech is not being able to yell “fire” in a crowded theater not on fire, because yelling fire would cause the crowd to wildly rush for the exits likely causing injury to many due to the panic created. And since the Founding Father’s priority was also to grant American citizens the unobstructed freedom of assembly, means organized groups that advocate racial discrimination have the same protected right to hold meetings, sit-ins, strikes, rallies, events, or protests, both offline and online as organized groups that advocate racial equality.
Freedom of assembly disappears once violence or destruction of property occurs at any meetings, sit-ins, strikes, rallies, events, or protests held by any organized group. It was the violence and destruction of property that transformed the January 6 protest from a constitutional assembly of aggrieved citizens to an unconstitutional riot mob threatening the survival of American democracy.
Regardless of how wrong they were about the 2020 election being stolen from Donald Trump and unconstitutionally awarded to Joe Biden, every January 6 protestor had a constitutional right to join the thousands of other January 6 protestors, at both the White House rally and the Capitol Hill rally, to voice their distrust and non-acceptance of the 2020 election results. The constitutional right that no January 6 protestor had was the right to knock down barriers to the Capitol Hill complex, no January 6 protestor had the constitutional right to break into the Capitol Hill building and defecate on the floors, vandalize and loot offices, or attack the Capitol Hill Police.
Any January 6 protestor that participated in these transgressions was not a constitutional protestor but an acts-of-violence protestor who deserves to be treated as such. As of June 6, 2023, 1,043 protestors have been charged in nearly all 50 states and the District of Columbia. Far-right conspiracy theorist, InfoWars fake news website host, and January 6 protestor Owen Shroyer is one of the 1,043 protestors charged. Last Friday Shroyer plead guilty to a misdemeanor charge of illegally entering a restricted area. The charge carries a maximum sentence of one year behind bars.
The restricted area Shroyer admitted to illegally entering was near the top of steps on the Capitol’s east side, where he stood in front of a crowd with a megaphone leading hundreds of rioters in chants of “USA” and “1776” and also yelling that Democrats are “tyrants. And so today, on January 6, we declare death to tyranny! Death to tyrants”. But Shroyer was a January 6 protestor who did not enter the Capitol building, did not participate in any destruction of Capitol Hill property, and did not engage in any physical acts of violence against the Capitol Hill Police.
This is why at his upcoming September 12 sentencing hearing Shroyer should receive no prison time and no home detention. The only difference between what Shroyer did as a January 6 protestor and what the 17 members of Congress arrested last July for entering a restricted area outside of the U.S. Supreme Court building to protest for abortion rights did, or Rev. Raphael Warnock, before he was elected Senator, arrested for illegally holding a protest in the rotunda of the Russell Senate Office Building did, was Shroyer shouting lie infested and hate infused rhetoric.
But lie-infested and hate-infused rhetoric is protected speech by the U.S. Constitution because one person’s truth can be another person’s lie. While protecting American’s free speech the U.S. Constitution also allows the government to enforce limited narrow restrictions on the exercise of free speech rights such as limits on the noise level of speech, capping the number of protesters, prohibiting early-morning or late-evening demonstrations, restricting the size or placement of signs on government property, and limiting protest demonstrations to government-designated areas. The government’s narrow restrictions allowed the free speech arrest of Shroyer, the 17 Congresspersons, and Warnock for the same offense, entering a restricted area.
Being in a restricted area or being part of a protest demonstration that has not been issued a permit, is usually the legal justification for arresting protestors that adhere to Martin Luther King Jr’s perfected method of nonviolent protesting. And in 99% of the arrest cases where no violence was committed and no property destruction occurred, arrestees are immediately released with no bail and all arrest charges are eventually dropped as was the case with the 17 Congresspersons and Warnock. Shroyer despite his protest rhetoric of lies and hate should be accorded the same no prison or no home detention treatment if charges are prosecuted in his case.
Those who feel that since Shroyer was part of a protest aimed at overturning a democratic one-person-one-vote-counted election, he should serve prison time or home detention must remember that the U.S. Constitution allows and protects disagreement with the government, criticism of the government, and even the violent act of burning the American flag because any true democracy must not only allow dissent but encourage the free expression of dissent. Based on the history of how nonviolent protestors are treated in America if Shroyer is sentenced to prison or home detention, merely for being in a restricted area and speaking false and hateful rhetoric would be tantamount to punishing him for unpopular speech, which would be a violation of his First Amendment free speech rights.
As Martin Luther King Jr. said in his famous “I’ve Been to the mountain top” last speech to America: “All we say to America is, be true to what you said on paper. If I lived in China or even Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn’t committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for rights.”
Far-right fake news conspiracy theorist Owen Shroyer was a January 6 protestor who exercised his First Amendment free speech and free assembly rights, to stand on the U.S. Capitol steps and shout protest lies about the 2020 election being stolen from Donald Trump, while never entering the Capitol building to defecate on the floors, destroy property, loot offices, or attack Capitol Hill Police. Therefore based on the U.S. Constitution’s First Amendment rights and the traditional treatment of America’s nonviolent protestors, on September 12, 2023, far-right fake news conspiracy theorist Owen Shroyer should not be sentenced to prison or home detention.