At 10, I learned about our Constitution and fell in love with democracy. I read in the Declaration of Independence about “governments ... deriving their just powers from the consent of the governed.” I then decided to be a lawyer.
In 1989, I began clerking for a federal judge, the Honorable Donald D. Alsop, chief judge of the District of Minnesota. I had the privilege over the course of two years to observe Judges Alsop, Devitt, Renner and Magnuson, all Republicans. I learned what it was to be a Minnesotan of conscience. I so admired their capacity for decency and common sense in applying the law and protecting the rights of citizens.
Today, 28 years later, I could not sit idly by and watch a bill advance that would eviscerate much of what I hold dear; I went to the House committee meeting and testified unsuccessfully against HB 322.
This bill, which would allow cities to sue citizens who are found guilty of creating a nuisance or unlawful assembly, violates the First Amendment. It is inherently un-democratic, un-American and un-Minnesotan, and must not become law.
While Rep. Nick Zerwas, R-Elk River, testified that the aim of the bill is to make sure cities don’t bear the costs of unlawful assembly, Minnesota common sense reveals the bill’s true aim: suppression of political speech. As such it does nothing to help the cities and much to harm Minnesotans. Zerwas’s own testimony belies his claim that the bill is for cities’ benefit; no city has asked the Legislature to enact his bill.
Citizens’ rights to free assembly and speech were so important to our nation’s founders that they included it in the First Amendment: “Congress shall make no law … abridging the freedom of speech … ; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
As citizens our right to protest is crucial to our ability to challenge the excess of governmental power. Everyone, regardless of party affiliation, must think carefully about the effect of passing laws that may chill citizens’ demonstration of their opposition to governmental authority.
There is no question that HB 322 could lead to Draconian punishment. Imagine someone is involved in a large protest that is later found to be an unlawful assembly. Under the proposed statute potentially any one participant could be sued to recover the entire cost of the public safety response associated with the assembly. Such a weapon could also lead to arbitrary action by the government; it would give power potentially to target leaders of groups to dissuade future political action.
Moreover, there is no clear line distinguishing legal protest and illegal assembly. Living just a few blocks from the governor’s mansion, I walked there many times last summer and listened to citizens who were gathered to mourn the death of Philando Castile. The officers present were courteous and professional. But there was no way to tell which areas were approved for assembly, or what specific conduct might be considered a nuisance. As a result of the brave work of the Black Lives Matter protestors, my eyes were opened, I paid attention, I learned and I have begun to ask myself about how my reality as a white mother, a white woman, differs from the everyday reality of black mothers in Minnesota.
But had the proposed bill been in effect, might I have been afraid to visit the protest site? Would some of the citizens gathered in protest have been dissuaded from participating in this vital democratic process? Yes. The uncertainty of the law coupled with the overwhelming potential consequences of arrest may have outweighed the desire to exercise protected rights of assembly.
It is a cost of living in a free society that we fiercely defend our citizens’ right to assemble. Democracy requires that we live with the reality acknowledged at the beginning of the American experiment, that all power to govern derives from the people. And it is a reality that when living, breathing, human beings are not adequately heard by their government, they will take action to correct that fact.
The more people are not heard, the louder they become.
Catherine Gnatek is a retired attorney in St. Paul.