Ray Brescia: Dissent Is Deeply American
By Ray Brescia
After an estimated seven million peaceful protesters took to the streets last month, demonstrating against what many see as the Trump Administration’s authoritarian turn, members of the administration and its supporters in Congress ramped up their rhetoric, arguing that the protesters “hate America.” Members of the administration have claimed there are plans to infiltrate and disrupt “antifa” networks and groups like the Ford Foundation and organizations supported by George Soros. The administration has also threatened to root out what it calls anti-American sentiment. In reality, the only anti-American sentiments are those that seek to curtail the fundamental and interconnected rights to privacy, to organize, and to disagree with the government.
For centuries, protest, political privacy, and free speech have been closely intertwined. The Supreme Court’s current jurisprudence on this connection took shape during the civil rights era, when the NAACP won a series of cases protecting the right to privacy and the freedom of association, but the origins of these interconnected rights can be traced to colonial times.
In the mid-18th century, a growing revolutionary sentiment began to form against British troops who were searching homes, sometimes for materials criticizing the Crown. One intrepid lawyer, James Otis, challenged such practices in the colonial courts, which inspired John Adams to later write: “Then and there the child Independence was born.”
The physical act of searching someone’s home, particularly for evidence of opposition to the government, was abhorred by the colonists, and later by the Founding Fathers. Eventually, the notion that such government intrusions should be prohibited would be enshrined in the Fourth Amendment, while the right to criticize the government would form the backbone of the First.
Modern views on the right to dissent all emerge from several Supreme Court cases protecting political privacy and free speech. In the years following the Supreme Court’s decision in Brown v. Board of Education, groups such as the NAACP sought to extend that ruling. Governments in the South, however, often worked to stifle such efforts by seeking disclosure of these groups’ membership lists, prohibiting their attorneys from advocating for civil rights, and seeking damages from these groups and their supporters for placing an advertisement criticizing a government official in the New York Times. Time after time, the Supreme Court ruled that government efforts to undermine freedom of speech violated the First Amendment.
Even when some acts of violence surrounded otherwise peaceful protests, the Supreme Court has found that there needs to be some evidence connecting the protesters and the violence in order for the government to step in. When the NAACP organized a boycott of businesses in Claiborne County, MS to press for civil rights, some sporadic acts of violence surrounded the boycott. However, since none could be traced back to the boycott’s organizers, the Court found that the group’s activities were those “ordinarily entitled to protection under the First and Fourteenth Amendments.” It determined that the activists “banded together and collectively expressed their dissatisfaction with a social structure that denied them rights to equal treatment and respect,” ultimately concluding that such activities are “deeply embedded in the American political process.”
Fast forward to 2025. Federalized national guard troops and ICE agents are occupying American cities, including Portland, OR, and Chicago, IL. A sweep of street vendors in New York City, the type one might see a half-dozen uniformed police officers carry out on any given day, was accomplished by a grotesque military-style assault likely designed to provoke a hostile community response. It was largely disrupted by civilian passers-by on their way to work.
It is hard to argue that anything would have rankled the Founders as much as these intolerant and violent displays of government authority designed to punish dissent. As cases concerning the practices and tactics of the National Guard and other law enforcement agencies, the administration’s attacks on law firms, and efforts to restrain the work of non-profit groups move through the courts and eventually reach the Supreme Court, will the Justices follow decades of rulings that place a heavy burden on government when it seeks to curtail First Amendment freedoms?
Indeed, precedent after precedent of the Supreme Court has endorsed the fundamental rights to privacy and peaceful protest, which we saw play out last month in cities and towns across the nation. Nothing could be more American than that. Whether this Court will agree remains to be seen.
Ray Brescia is a professor of law at Albany Law School and the author of the book The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.
