It is easy to laud the importance of our Constitution when there is no crisis. Constitutional advocacy really matters when our foundational values are in tension with state interest and polarizing effect. While I had to try my damnedest to stay awake during the dormant commerce clause lectures 1L year, I didn’t have that problem with the protest modules because it centered on what we could and couldn’t take for granted during times of unrest. Given our country’s history, that’s about 92% of the time. And while Supreme Court cases can make for a go-to litmus test of what flies at a given point in our history, most of what is actually happening on the ground never makes it that far. That said, this small case coming out of D.C. could be some history in the making. Axios has coverage:
The American Civil Liberties Union filed the suit on behalf of Sam O’Hara against four Metropolitan Police Department officers and a member of the Ohio National Guard seeking damages for alleged First and Fourth Amendment violations, false arrest/imprisonment; battery.
…
[An] Ohio guardsman “was not amused by this satire” and “threatened to call D.C. police officers to ‘handle’ the protester if he persisted” when the incident took place on Sept. 11, the ACLU attorneys allege in their complaint, filed in the U.S. District Court of Colombia.
You can see some of the arrest-worthy footage below:
Soon after the camouflaged, uniformed man whined to a blue-uniformed man about the unwanted soundtrack, O’Hara was tightly handcuffed for 15-20 minutes.
The degree and arbitrariness of the punishment makes for quite a small tyranny, but it is tyrannical nonetheless. Liberty is in danger the easier it is to arrest citizens for what amounts to — at worst — a constitutionally protected annoyance. O’Hara was obviously caught on camera, but is it too far off to imagine the police arresting someone without cause and justifying it by saying they were caught playing the “Imperial March” or “F*ck The Police”? What’s the point of the First and the Fourth if song selection is all that stands between freedom and being hauled off in handcuffs?
This could be a great test case to see what, if anything, is left of the First Amendment. Let’s see how far it goes.
Lawsuit: D.C. Man Detained For Playing “Star Wars” Song At National Guard [Axios]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s . He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, is interested in critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.