First Amendment expert calls Post-Dispatch editorial on protests ‘irresponsible’ and imprecise

Publisher’s note:  Gregory Magarian, one of the nation’s leading First Amendment experts and a professor at Washington University Law School, criticized the Sunday Post-Dispatch editorial for irresponsibly lumping together violent and non-violent protests.  He sent this letter to the Post-Dispatch Editorial Editor Tod Robberson after the editorial criticized actions of protesters following the acquittal of former St. Louis police officer Jason Stockley. Magarian says Robberson replied “We stand by the editorial as written.” Here is a link to the editorial and the text of Magarian’s letter.

Mr. Robberson,

I teach constitutional law at the Washington University School of Law. I specialize in First Amendment law. Two of the topics that most concern me are the freedom of the press and rights of public protest. (Being a law professor I talk too much, so I apologize in advance for the length of this message.)

With the utmost respect, I think your editorial today (Sunday) on the protests and violence this weekend (“Making sense of senseless protest violence”) was wildly irresponsible. I agree with some parts of the editorial and disagree with others, but my sharp concern goes to one particular problem: treating nonviolent protesters and violent actors as an undifferentiated mass. That approach demonizes nonviolent protesters and contributes to a growing culture in our country of hostility to free speech. A newspaper, of all entities, should know better.

Let me get two important caveats out of the way:

First, I agree without reservation that the violence and vandalism that happened this weekend are entirely wrong. My purpose here is to defend the actions of nonviolent protesters, not to condone or excuse violence in any way. (I live a block from the mayor’s house, so I’m acutely hostile toward the people who committed violence in my own neighborhood.)

Second, I don’t mean to suggest that the bad practice I’m criticizing is unusual to the P-D. In fact, the problem is endemic to media coverage of public protest. I’m writing to you because, like most people, I have special concern for my city and its institutions.

The reality of public protests, which I’m sure you know at least as well as I do, is that a lot of different people and factions participate in a variety of different actions. Most mass protests are carefully organized, with articulated goals. At the other extreme, usually at night, different elements with their own agendas get involved. In particular, two groups with violent intent come out at night: anarchist-black bloc-antifa types, whose m.o. is to hijack protests with their own more violent methods, and knuckleheads (for want of a better term) who have no political agenda but just want to break things.

The nonviolent protesters bear no responsibility — none — for the actions of violent actors. I suspect that the majority of violent actors don’t even participate in nonviolent protests, though I can’t prove that suspicion. In any event, to blame violence on the nonviolent protesters is a very dangerous kind of guilt by association. Ah, you might respond, but the nonviolent protesters create the context in which the violent actors can do bad things. In a way that’s true, but it proves far too much. By that logic, any public protest is wrong.

Imagine if the P-D broke a major corruption story about a public official. Your reporters sourced the story well and published only those allegations and claims for which they could find a solid basis. The story creates a major buzz in the city. Other, less responsible media outlets, exploiting the public anger at the official that the P-D’s reporting has triggered, publish egregious charges against the official that those other outlets know are false. The official, in response, sues the P-D for libel. That lawsuit, of course, would be indefensible.

Your editorial today is a direct parallel.

You acknowledge that Friday’s daytime protests were “mostly peaceful.” Even in talking about those protests, though, you make no effort to distinguish the protesters who remained peaceful from the individuals who committed violent acts. You say “bricks and water bottles were hurled.” That passive voice is a cop-out. It implies that the “mostly peaceful” protest degenerated into the hurling of bricks and bottles. But we know that’s not what happened. “The protest” wasn’t a single, concerted phenomenon. The clergy and community organizers who engineered the major protest didn’t decide, at some point, to start throwing bricks. Most people on that street started peaceful and stayed peaceful. A much smaller number of people threw bricks bottles. Those are two very different groups of actors. They aren’t all simply “the protesters” engaged in “the protests.”

The problem gets worse as the editorial goes on. Here’s the passage that really bothers me:  “Some protesters have said they plan to attack symbols of commerce and inflict discomfort on the comfortable. Even if they rationalize property destruction as legitimate protest, why attack the mayor’s house?”

I tried to follow the first hyperlink in that passage, to see exactly what you were referencing, but the link is dead, so I have to work from my knowledge and assumptions. Protest organizers have indeed said they intend to “attack symbols of commerce and inflict discomfort,” if by “attack” you mean “disrupt.” That’s a core strategy of these protests and of the Black Lives Matter movement more broadly. You then accuse these disruption organizers of “rationaliz[ing] property destruction as legitimate protest.”

I’m having a hard time finding words to describe how much that bothers me. I don’t know of any disruption organizers who have rationalized violence. The organizers explicitly portray the disruption strategy as nonviolent — aggressive, for sure, but getting in someone’s way isn’t property destruction. However, even if some disruption organizer has rationalized violence, your “they” implies that all disruption organizers have done so. Then the passage’s second “attack” clearly refers to the vandalism of the mayor’s house. At that point, you’re portraying the architects of the disruption strategy and the vandals who physically attacked the mayor’s home as the same people.

Unless you have evidence of those linkages (which in that event you should publish), they fail every standard I’m aware of for responsible journalism.

Why does this matter? A few days ago, a KMOV reporter interviewed me about the recent incident in Kirkwood when a motorist plowed into some protesters ahead of the Stockley verdict. She wanted me to talk about the permissible conduct of drivers who encounter protests that block streets. The core of what I said was: If you’re a driver, you don’t get to run anybody down, even if they’re unlawfully blocking your way. The online version of the KMOV story got a lot of heated reactions from our fellow citizens who insisted that they of course have every right to run down protesters who block the road, and by God they’ll run those bastards down if they want to.

The right and the ability to protest publicly are crucial to a functioning democratic society. Unfortunately, as that little anecdote indicates, a lot of people have an irrational hatred for protesters. (Note also the spate of recent state legislative proposals to restrict public protest in various ways.) By conflating nonviolent protesters and violent actors, the P-D (and other media outlets) feeds that irrational hatred.

I respectfully urge you and the P-D’s news and editorial departments to do better. Describe protests more accurately and precisely. Emphasize the presence in and around protests of different actors with different agendas. Identify, to the extent possible, which people and groups say and do which things in the course of protests. Emphasize not just that a day’s aggregate activities were “mostly peaceful” but that most protesters that day were entirely peaceful. Report and describe nonviolent actions with as much detail as you report violent actions. Basically, do what you usually do so well — help the public understand what’s actually going on.

Thank you for hearing me out.
Greg Magarian