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- [00:00]
A
Today is Saturday, January 17th. Videos out of Minnesota showing immigration enforcement have spread quickly, sparking strong reactions, sharp divides, and a lot of questions about what's legal and what's not. So today we're stepping back from the heat of the moment and going back to the Constitution. My guest is David Loyd, the legal director of the First Amendment Coalition, a nonpartisan nonprofit focused on defending free speech, a free press and the public's right to know. He'll explain what the First Amendment actually protects when it comes to recording and protesting law enforcement and and when it becomes interference or obstruction. We also dig into some of the rhetoric we've heard from officials, how free speech can and has been used by politicians in both parties and how all of this impacts what it means to live in a free society. Welcome to the NEWSWORTHY Special Edition Saturday, when we sit down with a different expert or celebrity every Saturday to talk about something in the news. Don't forget to tune in every Monday through Friday for our regular episodes where we provide all the day's news in less than 15 minutes. I'm Erica Mandy. It's now time for today's special edition Saturday. David Loy, thank you so much for joining us here on THE newsworthy.
- [01:07]
B
My pleasure. Thank you for having me.
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A
We've seen a surge of videos out of Minnesota tied to immigration enforcement. So I just want to talk about the big picture first. From your perspective, why has this moment captured so much public attention? And what really stands out to you about these videos so far?
- [01:22]
B
It's clear that there are enormously strong feelings on both sides of this debate about whether and to what extent the current federal administration is engaging in appropriate law enforcement or abusing its authority and persecuting people who should be left alone. My organization does not take a position on that debate. We are the First Amendment Coalition. And whatever one's point of view on law enforcement of any kind, the First Amendment guarantees the right to protest what law enforcement is doing, to document and record what law enforcement is doing, and in fact, even to challenge what law enforcement is doing as long as one does not physically interfere with the actions of law enforcement officers or physically prevent them from doing their job.
- [02:11]
A
I want to talk about videos in general. They obviously can create accountability. They can offer a more neutral point of view of what had happened than maybe just human perspectives remembering. But also they might lead people to jump to conclusions without having the full context. Right. So how do you think the public should think about all of these videos that they're seeing? What can they tell us and what can't they tell us?
- [02:33]
B
Every single video reflects the perspective from which it was taken. And any given video may or may not tell the complete story of a given incident. But the reason we have the First Amendment that guarantees the right to record is precisely, as you say, to hold government accountable. And the fact that information may be imperfect is not a reason to disregard it. In assessing the conduct of law enforcement or anyone, it's important to have as much information as possible to exercise independent judgment and critical thinking skills, to assess the evidence objectively.
- [03:05]
A
And so from the videos out of Minnesota that you've seen, are you seeing concerning instances of people not being allowed to record or being detained for recording in an unlawful way?
- [03:16]
B
I have not scrutinized every single video. And so I cannot give you a definitive legal opinion. What I can tell you I'm very troubled by are comments by federal officials up to and including the Secretary of Homeland Security, stating or implying that simply recording what officers are doing is itself obstructing, is itself an act of violence. Those statements are absolutely at odds with the First Amendment. No government official at any level, local, state, or federal, should ever be equating the exercise of First Amendment rights with the commission of violence or with the act of obstructing law enforcement officers. The people have an absolute First Amendment right to observe, document, and record the actions of law enforcement officers in public.
- [04:08]
A
And let's get a little even more clear. When you say in public, what do people need to know about what that means?
- [04:14]
B
When I say in public, I'm talking about what we call in First Amendment law, a traditional public forum. Any public street, sidewalk, or park. And when I'm in a public forum, I have the right to protest, I have the right to film, I have the right to record. And especially, but not only the right to protest, film and record law enforcement operations.
- [04:35]
A
And I know from my reporter background, if you, if the recorder is on the public sidewalk, if you can see it, even if the officer is, let's say, in a house, at a private space, you can still record, right? As long as you're not entering the private space.
- [04:50]
B
Correct. If I'm on a public street or sidewalk, I'm allowed to record that which is in plain view. I might not be able to use a thermal imaging scanner to reveal the details of what's inside the house. That might potentially invade privacy. But if I'm just using an ordinary video camera, I'm entitled to stand on a public street or sidewalk and film anything that is in plain view to me in the public square and is.
- [05:14]
A
Shouting at the officers interfering.
- [05:17]
B
The Supreme Court held in a case called City of Houston against Hill that the First Amendment does protect the right to challenge law enforcement officers verbally. Now, one cannot physically interfere with the officer. One may perhaps be required to maintain a reasonably safe distance from the officer. I might not have the right to walk up within a foot of an officer making an arrest to shout at the officer. But if I stand back 10, 15, 20ft and I challenge that officer and I say, what are you doing? I think this is illegal, you should stop. As long as I'm expressing that verbally and I'm not physically interfering with that officer or attempting to physically prevent them from making the arrest or doing whatever they're doing, I have the right to do that. This is how we tell the difference between a free society and a police state.
- [06:06]
A
President Trump has said that some of the chaos has been caused by paid agitators. And that's something I've heard in the past, that law enforcement say, well, some of the most violent people in this really just want to cause this chaos. Does that typically happen in the US when protests are happening and what are signs that that is actually the case?
- [06:24]
B
The allegation that outside agitators are responsible for the problems is not a new one. This is something that has been alleged for decades. It goes back to Southern states and the civil rights movement. It's a very common theme that those in power invoke to try to discredit what is in fact genuine grassroots opposition to what the government is doing. Is it theoretically possible that people arrive from elsewhere to protest? Of course, I can't rule out that hypothetical possibility. But whatever one's position on those issues. Right. The First Amendment guarantees everyone the right to protest and oppose the government. It is irrelevant whether one is paid or unpaid.
- [07:10]
A
We've also heard officials describe some actions as terrorism. So what actually qualifies as terrorism, especially when it comes to protests? How high is that bar or what's the history of that terminology?
- [07:23]
B
So there are multiple issues embedded in that question. One, is there a legal definition of terrorism that applies here? And my answer, as far as I know, is that we do not any federal statute that criminalizes so called domestic terrorism. More to the point, it is a highly inflammatory allegation and no one in government should ever be equating protected speech with terrorism. If someone commits a crime, they can potentially be prosecuted for it. It is potentially a crime to physically obstruct and interfere with a law enforcement officer. That is not terrorism. That is obstructing a law enforcement officer. So the First Amendment does not protect physically assaulting people. It does not protect physically interfering with law enforcement. It does protect heated protest. It does protect the right to dissent, protest, advocate one's point of view, and to do so in highly heated terms. So the Supreme Court has recognized that politics is intense, controversial issues create strong feelings on all sides, and people have the right to express themselves strongly and vehemently.
- [08:28]
A
I do want to talk about the perspective of officers, many of whom, you know, don't necessarily know who's approaching them, may have faced real danger in the past, might be facing real dangers as they're operating. What do you think people do need to keep in mind about that? And how does the law balance officer safety with civil liberties?
- [08:45]
B
The question to me is not so much what private persons need to do to understand the prospective officers. The question to me is what do the officers need to know so that they can conduct themselves in accordance with the Constitution? Officers are supposed to be highly trained and exercise professional discipline and restraint. That being said, people who protest should also know their rights and know their obligations under the law.
- [09:15]
A
Still ahead, what options people actually have if they're detained and believe their rights were violated and why challenging that in the moment is complicated. We also talk about why free speech so often becomes politicized, and more about how the First Amendment is meant to function regardless of who's in power. That's coming up. But first, a quick break for our sponsor. Reports show that a lot of parents are concerned about microplastics in cleaning products. Yet as we reset our habits for the new year, most don't realize they're still bringing them into their homes every day. And that's why I've made the switch to blueland across all the cleaning products in my home, especially going into the new year when I'm rethinking routines and trying to build more sustainable habits at home. Certified by Cradle to Cradle, blueland products meet the highest standard of clean. They're effective, yet gentle on people and the planet. From cleaning sprays and toilet bowl cleaner to dishwasher and laundry detergent tablets, Blueland's 100% microplastic free EPA safer choice certified formulas are safe to use around my family, including my son and my cat. I love not having to choose between the safe option and what actually gets my house clean. For example, the dishwasher tablets are so convenient. There's no measuring, no mess. And they clean just as well, if not better than the harsher stuff I was using before and I feel so much better about it. Blueland has a special offer for listeners right now. You can get 15% off your first order by going to blueland.comnewsworthy. you won't want to miss this. Blueland.comnewsworthy for 15% off. That's blueland.comnewsworthy to get 15% off. Now back to my conversation with the legal director of the First Amendment Coalition, David Loy. If someone is detained and then not charged or believes their rights were violated, what options do they realistically have?
- [10:59]
B
Well, in the moment, reasonable people can differ on this. In the interest of self protection, it's not usually a good idea to argue with a gun and a badge. That's my personal view. Other people may have different views, but legally speaking, if one is detained and wishes to challenge that and believes that detention was unlawful, one has every right to pursue all available legal remedies. We are supposed to be a country of laws. We are supposed to follow the rule of law, not the rule of police. And this is why we have a legal system to resolve these disputes.
- [11:29]
A
And I want to acknowledge, I mean, when people say just sue, in reality, that's time, money, potential backlash. It's not necessarily easy.
- [11:37]
B
That's correct. Litigation can be costly and time consuming and difficult. It is not the only way to protect one's rights. I mean, one can speak out even if one doesn't wish to pursue litigation and tell the world on social media or speak to the press or give interviews or give press conferences and say I was arrested, I was wrongfully detained. I want the world to know because an engaged, informed civil society is the best check on abuse of power.
- [12:02]
A
Do you find that based on the political party? Freedom of speech is kind of like a convenience thing where both parties have gone against it when it works in their favor. Or what do you see when it comes to how this turns political? When it comes to freedom of speech.
- [12:18]
B
It is not unusual for freedom of speech to be in the eye of the beholder in the sense that individuals and politicians of multiple different belief systems will often invoke free speech principles when convenient to them and disavow them when not. I have personally opposed and litigated threats and attacks on freedom of speech from all sides. There are multiple reasons why people try to silence dissent and protest. There may be a political motivation. They may simply be offended and wish people to express themselves more politely. Ideally, all discourse would be civil and polite. Yes, that's my ideal world. But we don't live in an ideal world and The First Amendment does not demand absolute perfection. It does not demand or require that people express themselves in the most polite, civil and eloquent way possible. The First Amendment protects all speech, or virtually all speech, precisely because we do not trust or should not trust the government that is People ultimately with guns and badges to tell us what we can and cannot say.
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A
Is there anything we haven't talked about yet that you think is important to add, or just a final thought or takeaway?
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B
It is times like these that test our most fundamental commitments to our most fundamental freedoms. And whatever one's point of view is about this administration or its immigration enforcement practices or priorities, nothing is more important than protecting our fundamental rights to freedom of speech. Freedom of speech is the oxygen of civil society, and it is extremely important that whatever else we do, we stand up and defend the right to speak, protest and dissent. If we lose that, then we have lost the very foundations of democracy and civil society.
- [14:01]
A
Thank you to David Loy for taking the time to chat with us. You can learn more about these issues by going to first amendmentcoalition.org I want to acknowledge that there are a lot of different angles and perspectives about the ongoing immigration crackdown in Minneapolis and around the country. We don't have time to cover them all in one episode, but we will continue to cover various topics and angles and perspectives across both our daily news roundups and these weekly deep dives moving forward. So if you found this episode helpful or important, please share it with a friend or online. And of course, join us again during the week to stay updated and informed on the day's news. We provide daily roundups that are less than 15 minutes every Monday through Friday. And if you want to support the work we do here, we would love for you to become a newsworthy insider. In addition to supporting us in a crucial way, you also get completely ad free episodes, saving you more time and ensuring no interruptions to your news. Just go to theneworthy.cominsider to start your free seven day trial. That's thenewsworthy.cominsider. thanks again for listening. A reminder, our team is off on Monday for Martin Luther King Jr. Day, but we'll be back on Tuesday with the latest news. Until then, have a great rest of your week. Weekend.