"First, They Came for the Sex Offenders … "

The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here).  The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect."  Here are excerpts from the ends of an extended discussion of the case and its context: 

Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself.  Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence.  As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security.  Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism.  The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t.  This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.

Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.”  The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.

Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest.  Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago.  It is difficult to imagine a less popular group than registered sex offenders.  But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students.  And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.