Government cannot punish viewpoints it dislikes

The First Amendment does not exist to protect popular speech. It exists to protect speech that someone, somewhere, finds offensive.

That principle appears to be at the heart of the controversy that recently unfolded in Putnam County.

As part of America’s 250th anniversary celebrations, county officials reportedly invited members of the public to write messages on a replica of the Declaration of Independence, with the intention of preserving it in a time capsule. Pens and markers were left available in a public space, and citizens were encouraged to participate.

People did exactly what they were invited to do.

Some wrote patriotic messages. Others wrote humorous comments. Still others wrote political slogans, including statements such as “Abolish ICE,” “500 Years of Genocide,” and “Free Palestine.”

Then everything changed.

Once objections were raised about the viewpoints expressed, what had been presented as a public participation project suddenly became the subject of a criminal investigation. Individuals who wrote on the document—or were merely present—have reportedly been identified publicly, threatened online, accused of vandalism, and had been under investigation for possible criminal mischief. Public officials have also suggested, without publicly presenting evidence, that those individuals may be connected to an unrelated act of vandalism that occurred days later.

Whether one finds the messages offensive, misguided or persuasive is beside the point.

The constitutional question is much simpler: Can the government invite the public to engage in expressive activity and then prosecute participants because officials or members of the public dislike what they said?

The First Amendment strongly suggests the answer is no.

Government may certainly establish reasonable rules before an event begins. It may prohibit obscene content, impose time, place, and manner restrictions, or limit participation in ways that are viewpoint neutral. But once officials intentionally create a forum for public expression and invite citizens to write their thoughts, they cannot ordinarily change the rules after the fact simply because some viewpoints prove unpopular.

Doing so raises the specter of viewpoint discrimination — the most disfavored form of government regulation under the First Amendment.

The issue here is not whether every message belonged on the replica. Reasonable people can disagree about whether political slogans were appropriate for an anniversary celebration.

The issue is whether writing on a document that the government expressly invited the public to write on can suddenly be recharacterized as “criminal mischief” after officials discover they dislike some of what was written.

That is a dangerous precedent.

If government may retroactively transform invited expression into alleged criminal conduct whenever public opinion shifts, then citizens can never know whether accepting an invitation to speak will later expose them to investigation or prosecution.

The chilling effect would extend far beyond Putnam County.

Future participants in public art projects, community message boards, commemorative displays and civic engagement events would understandably hesitate before expressing any opinion that might later prove controversial.

That is precisely the kind of self-censorship the First Amendment was designed to prevent.

Equally troubling are reports that identifying information collected during the police response was later disclosed in a manner that allegedly subjected participants to harassment, doxxing and threats. Regardless of how that information became public, government has an obligation to safeguard personal information gathered during official investigations and to avoid actions that unnecessarily expose citizens to intimidation for engaging in protected speech.

The Declaration of Independence itself is, fundamentally, a political document.

It is a declaration of dissent.

It accused a government of abuses, catalogued grievances and defended the right of people to criticize those in power. It is difficult to imagine a document more closely associated with the American tradition of robust political expression.

One need not agree with every modern protest slogan to recognize the irony of inviting public commentary on a reproduction of that document and then threatening criminal prosecution because some of the commentary was controversial.

The First Amendment does not promise that speech will be applauded.

It promises that government cannot punish speech simply because others object to its message.

If the facts are ultimately as they have been publicly reported, Putnam County’s response risks turning a celebration of America’s founding commitment to liberty into a cautionary tale about why that commitment remains as important today as it was nearly 250 years ago.

Michael Gottesman is a retired attorney and education policy advocate who writes about public education and civic issues nationwide. He is also the founder of the New Jersey Public Education Coalition, New Jersey Community Liaison for Defense of Democracy, and a member of and former lobbyist fror the League of Women Voters of New Jersey Education Committee and a graduate of Duke University and Vanderbilt Law School.