The Kansas Constitution guarantees free speech, too

4

June 19, 2013 by Julia

Folks are up in arms because pro-amnesty protesters protested at the home of the anti-amnesty Kansas Secretary of State:

Over the weekend, a mob of maybe 100 pro-amnesty protesters swarmed around the home of Kansas secretary of state Kris Kobach, a prominent immigration hawk, chanting “Si, se puede.” Kobach, his wife, and their four girls happened to be out of town, but you can see from the video that people are crowded on his front porch and steps, his driveway, and front lawn.

This situation was apparently absolutely horrifying to my fellow travelers on the right.  Mark Krikorian writes in the National Review, linked above:

. . . but the real issue is that political protests should never target a public official’s home or family. It is naked intimidation and has no place in a democracy. This is true regardless of the positions taken by the official or the protesters.

Well, you know how I feel about incorporation, so as far as I’m concerned (and the Supreme Court disagrees with me on this, I know), the First Amendment does not apply here, because Congress is not involved.  However, let’s look at paragraph 3 of the Kansas Bill of Rights:

3. Right of peaceable assembly; petition. The people have the right to assemble, in a peaceable manner, to consult for their common good, to instruct their representatives, and to petition the government, or any department thereof, for the redress of grievances.

Hmmm.  You don’t say . . .

Now listen, there are some rules here.  Trespassing on private property and vandalism are, and should be, illegal.  Tromping around someone’s yard and damaging things is not protected by the above language.  As for protesting the family of a government official, while I find it rather pointless, that would be protected by a combination of paragraphs 3 and 11 of the Kansas Bill of Rights.

The point is, I don’t see any problem with protesting peacefully on public land near the home of a government official, so I take exception with the suggestion that “political protests should never target a public official’s home or family.”  What should never happen is trespassing on private land, vandalism, and/or violence (so these protesters were not, in fact, in compliance, because they trespassed).  But if citizens want to petition their government officials at home instead of in the capitol?  Go for it.

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4 thoughts on “The Kansas Constitution guarantees free speech, too

  1. Stuart the Viking says:

    I agree, if the protesters stay on public land their speech should be considered protected speech. In my opinion ESPECIALLY because it was political in nature. The moment they trespass on private property however, those protections do not, and should not, apply.

    I can see the other side of the argument also. In this case, the (so-called) “protesters” didn’t stay on public land, they went so far as to stand on the man’s porch. When they did so, the ceased to BE protesters, and became a mob of trespassers. I can see a very good case can be made that this would constitute intimidation. If someone is intimidated by protesters standing on public land, they need to get over it, the protester’s rights to free speech trump that person’s rights to not be a scared little cry baby. When those same people stand on a person’s front porch, that person is an idiot if they are not at least a little intimidated. In that case, it would be the proper time to arm oneself in case the MOB OF TRESPASSERS decide that the front porch isn’t good enough and attempt to take their MOB into the living room.

    As an aside, let’s wonder for a second what would have happened if Kobach and his family HAD been home at the time. Certainly the police would have been called, and depending on the mood of the crowd, people could have gotten seriously hurt. Some would have probably been arrested, and in my opinion, rightfully so.

    s

    • Julia says:

      Oh, I absolutely agree. You don’t get to trespass on private land in the exercise of your legal rights. If a mob of protesters shows up at your door, the cops should come and disperse the crowd, and arrest anyone who won’t leave. I just didn’t like the categorical statement that it is “never” an acceptable form of protest–of course it’s acceptable, as long as the protest does not involve trespassing or violence.

  2. Jake says:

    This seems headed for some murky regions. While people obviously have the right to peaceably protest just about anything they feel deserves it, it’s hard to see how demonstrating against an official’s family going about their daily (private) lives would be a reasonable extension of free speech protections. I recall hearing a ruling that protests held in private parking lots – say, outside a big-box store – were judged to be legit on the grounds that such places were still a public square, even though they were privately owned.

    The context was that the protests were against the practices and policies of the store, though, not against those of its customers (well, beyond the customers’ decision to shop there, anyway), and the protesters could not bar customers’ entry. Similarly, protests of abortion clinics allow protesters to advise anyone entering the clinic so long as the protesters don’t prevent entry outright, but there is a distinction here. In both cases, the protesters aren’t protesting any specific customer, they are protesting the establishment. That is, they’re saying “no one should go or shop here,” not “Jake should not go or shop here,” and they’re not allowed to do more than talk to me in either case.

    It’s hard to see how a group might demonstrate against members of an official’s family because of the official’s political stance, and manage to not interfere with that family member’s private life. That seems uncomfortably close to schoolyard bullying of the “my dad hassled his dad, so he’s going to take it out on me” variety than anything else.

    • Julia says:

      Protesting someone’s family is pretty ineffective (it’s not like the family is casting any votes). The only way someone could expect it to be effective is if that person intended to use intimidation tactics against the family–in which case, the protesting would be unacceptable and possibly illegal (i.e. direct threats, trespassing on private property, etc.). But, people do have the right to engage in even ineffective protests.

      I disagree with the rulings that require private entities (such as malls) to allow protesting on their private property.

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