The #J20 trials are about the future of the First Amendment


Mozilla/Ford Foundation Open Web Fellow for 2017



Riot police in Washington, D.C. at the 2017 Inauguration Day protests

Wikimedia Commons

In the latest blow to the Department of Justice’s attempt to criminalize protest in the United States, the Attorney’s Office has dropped charges against eight defendants in the so-called J20 trials. But the government’s ongoing and aggressive prosecution of people arrested merely for their presence at a protest where crimes allegedly occurred remains dangerous, and will have chilling effects on the future of dissent in the United States.

On Inauguration Day last year, over 200 people—including protesters, legal observers, medics, and journalists—were indiscriminately arrested and subsequently slapped with felony charges including conspiracy to riot and property destruction. The legal theory of the prosecution is that over two hundred peaceful protesters are collectively responsible for the acts of a few individuals who allegedly committed crimes. Since then, two groups of J20 defendants have faced trials, and both groups have thankfully been acquitted of all charges.

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While it’s undoubtedly good news that prosecutors have so far failed to convict a single person for attending a protest and merely being in the vicinity of property damage, these trials have far reaching and serious implications. The legal theory of federal prosecutors is, essentially, if one person smashes a window at a protest but cannot be identified, everyone present should be held legally responsible.

The first group of J20 defendants faced trail in November 2017. This initial batch of defendants including a journalist, Alexei Wood, who was at the Inauguration Day protest doing his job livestreaming the event to the world. He had been indicted on eight separate felony counts, which carried a possibility of more than 60 years in prison. The jury quickly returned “not guilty” verdicts for Wood and five others, and soon after, charges against another 129 people were dropped. But 59 defendants still remained.

For the latest group of defendants, the government’s evidence has included videos of the protest planning meeting that were acquired by Project Veritas, a group of undercover far-right bloggers. But the judge ruled last week that prosecutors not only withheld sixty-nine recordings that could have exonerated the defendants, but also misrepresented edits that they made to the footage they used in court.

In light of this Brady violation—in which the prosecution hides evidence that could be favorable to the defense—charges against five defendants were dismissed on May 31st. Charges against another group, whose trial began May 29, have been downgraded from felonies to misdemeanors. Instead of proceeding to a bench trial on the misdemeanors, prosecutors ultimately dropped their case entirely against this trial group.

A judge has barred the prosecution from using the undercover videos in future J20 trials. And while it’s encouraging that the government has been caught in its deception, defense attorneys’ motions to throw out other charges because of the Brady violation were denied.

Dylan Petrohilos, one of the defendants in the June 4th trials whose charges were just dismissed on May 31, was not arrested at the Inauguration Day protest. He claims he was not even present at the demonstration at all. Instead, more than two months later in April 2017, armed police raided his home and seized his electronic devices. They also took an anti-fascist flag that he displayed on the lawn outside of his home—a dangerous attempt to connect a political symbol with criminal activity. That month, he was charged with rioting and property damage.

He told Freedom of the Press Foundation that the government is likening activities like facilitating meetings and organizing support for jailed protesters to criminal conspiracy, and that he was targeted because of his visibility as an anti-fascist organizer.

Although Petrohilos’ case was dismissed on May 31 in light of the Brady violation, he says the trial disrupted his life. “My mental health definitely took a dive for the worse during the lead up to the indictment. I’ve had to get on antidepressants, I’ve had to see a therapist. But for other people, they’ve had to spend thousands of dollars in legal fees, spending a large sum of money to defend their nursing licenses,” Petrohilos told Freedom of the Press Foundation.

The threat of years in prison is only part of the punishment. These trials, and the uncertainty of waiting months and years for resolution, have significantly uprooted the lives of defendants. One J20 defendant, a nurse, was forced to quit her job in order to accommodate the schedule of her trial. Another defendant and her fiance moved from their home in California to Washington, D.C. because of the high cost of constant travel to hearings on the East Coast.

Over 50 people are still facing charges. Among them is journalist Aaron Cantu, who has written for news outlets including Vice, Al Jazeera, and The Intercept. He faces a charge of felony rioting, and if convicted could face up to 10 years in prison. (Eight other journalists were also arrested, but Cantu is the last one facing charges.)

Despite the significance of these trials, they have received little media attention. Thankfully, alternative media groups like Unicorn Riot have stepped up and provided outstanding coverage of the trials.

The Department of Justice has shown that it is willing to deceive, manipulate, and misrepresent facts in its attempt to punish critical political speech. Its prosecution of the J20 defendants poses a grave threat to many of the freedoms enshrined by the First Amendment. The government is targeting the press, and its ability to fulfill its fundamental journalistic responsibility to document and report on newsworthy political events, regardless of their legality. It is threatening not only the right but the feasibility of the public to assemble and express themselves freely—especially in opposition to the state.

When, inevitably, there are other unpopular presidents or policies, will people dare to speak up? Next Inauguration Day, will people think twice before marching in Washington? Before publicly displaying political symbols? Before criticizing power on Facebook, or on a radio show? What does it mean to have a right that a government has intimidated the public from exercising?

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