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Kettling Free Speech (or Why Unicorn Riot Has It All Over the NYT)

Does anybody have enough strength left to pop a cork in celebration that we’ve made it through Trump’s first year in office? I don’t. There is stuff to celebrate, such as the December 21 jury-trial acquittal of six of the 194 defendants facing decades in prison for protesting at Trump’s inauguration last January. But this remains a bellwether case, a sign that the judicial climate change begun by past administrations may well become unstoppable under Donald Trump. To the degree that the mainstream media have all but ignored it – which is large – this case bears watching.

J20, as it’s come to be known, resulted from the efforts, begun July 2016, of DisruptJ20, a group organizing an “anti-capitalist, anti-fascist” inauguration-day “Festival of Resistance.” There were other protests in Washington, D.C. on January 20 not organized by this group, but J20 was largely black bloc.

Black bloc is not a group; it’s a largely anarchist tactic by which protesters dress in black and protest anonymously, often covering their faces. It was a black bloc protestor during the J20 protest who delivered the salutary – and meme-worthy – punch to white supremacist Richard Spencer, preempting Spencer’s explanation to Australian media of the political significance of Pepe the Frog.

Thousands of protesters attended Trump’s inauguration, some dressed in black. While most marched down 13th Street, a few broke away to hurl rocks and bottles at police officers, set vehicles on fire, and throw “Make America Great Again” baseball caps into burning garbage cans, while others smashed windows of capitalist bulwarks like Bank of America and McDonalds. Damage is estimated at over $100,000 – a pittance, compared to the damage that Trump’s recent $1.3 trillion tax cut will likely wreak on the infrastructure.

Meanwhile, the response of the Metropolitan Police Department (MPD) to the “riot” was hardly peacekeeping. As observably nonviolent participants reached 13th and K, police suddenly – without warnings or dispersal orders – launched gallons of pepper spray, using hand-held canisters and newfangled MK-46 dispensers, called “Super Soakers.” Cops also fired rubber bullets and “Sting Ball” grenades that eject hard rubber balls into a radius of protesters. Police body cams at trial showed several instances of cops pushing protesters to the ground from behind with riot batons.

Cops pepper-sprayed protesters even after large numbers had been “kettled” – herded into an enclosed space from which people could not move. Among other allegations, an ACLU lawsuit charges the MPD with unconstitutional arrests at J20, excessive force, denying kettled protesters food, water, and access to toilets for hours, and carrying out forced rectal searches.

Over 230 people were arrested; 194 charged with felony rioting, which can mean up to ten years in prison. Although about 20 defendants agreed to plea deals, 130 signed a “points of unity” agreement, pledging to refuse plea bargains that could hurt other defendants, to share information and resources, and generally to “stand together.” This likely served them well when, in April, the DC Superior Court handed down superseding charges, adding eight more felonies including inciting to riot, conspiracy to riot, and property destruction. Remaining defendants now face sentences exceeding 70 years.

Why J20 compels attention: The prosecution in the recent trial acknowledged that none of the six defendants participated in property destruction. Also, the fact that few, if any, of the 188 defendants awaiting trial can be shown to have acted “violently” may not legally matter.

Certainly, there have been larger mass arrests and greater police brutality, but J20 charges present an open and egregious threat to First Amendment rights. If the prosecution succeeds in the next volley of trials, federal courts can sentence anyone to decades in prison, merely for attending a protest where a law is broken. Simple acts like yelling, “Stay together,” or wearing clothes supporting a protest message could be “reasonable” proof of conspiracy charges.

At a time when Trump is already packing the courts with unqualified, conservative judges, J20 demonstrates increasingly reactionary interpretations of law. Although DC Superior Court Judge Lynn Liebovitz reduced two felony charges of the six defendants to misdemeanors – cutting their possible sentences from 60 to 50 years — she also declared that journalists filming and describing the protest, as defendant Alexie Wood did, were aiding and abetting “the riot.” Judge Liebovitz also stated that street medics (one defendant was a nurse) could be aiders and abettors if they assisted an injured “rioter.”

There’s no room here to fully explore the use of cyber-surveillance in obtaining evidence, or the encroaching presence of the far right in J20 police and trial procedure. But you should at least know that video footage of a DisruptJ20 planning meeting, secretly shot by an informant from Project Veritas (the group recently exposed for trying to discredit the Washington Post with a fake sexual-assault story) was used by the prosecution as evidence – even after the government admitted to editing it. Then there was the discipline record, revealed by the defense, of MPD Commander Keith Deville. It was Deville – written up for joking about the Holocaust and making anti-trans and anti-queer remarks – who ordered and supervised the riot-police assault on protesters.

The six J20 defendants were acquitted because their trial luckily retained some meager remnants of reason. As court adjourned, a juror explained the verdict: “The prosecution admitted, day one, that they would present no evidence that any of the defendants committed any acts of violence or vandalism. From that point … it was clear … we would find everyone not guilty.”

But even if every single defendant of the remaining 188 is acquitted over the next year, charges like those embedded in J20 can effectively intimidate anyone from going to an anti-government protest. They also point to the growing infatuation of the Trump administration with rulers like Erdoğan and Putin who deploy similar, usually worse, punishments for dissent.

In closing, three things:

1. Solidarity matters: between movements (keep up with Standing Rock, Black Lives Matter) and within cases (don’t separate “good”/nonviolent from “bad”/violent defendants).

2. Never stop valuing independent media. Virtually no mainstream outlet reported J20 thoroughly. The New York Times, instead of covering the trial, ran a Style section article, “What to Wear to Smash the State.” Whereas, a host of mostly independent outlets, including Unicorn RiotThe InterceptIn These TimesThe NationDemocracy Now!, the podcast It’s Going Down, were timely and essential.

3.  Happy New Year. Six down, 188 to go. Let’s keep in touch.

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