Did Portland violate the First Amendment by selectively tolerating violence?

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Portland and its police may have violated the First Amendment by allowing members of the left-wing group Antifa to physically attack people, such as a conservative journalist and an elderly man. Police are not allowed to permit attacks on disfavored speakers, or permit violence by ideologically favored groups, while otherwise enforcing the law. That violates the First Amendment. Police have no duty under the Constitution to protect the public at all. But if they do, they can’t selectively withhold protection from people with disfavored views, or selectively permit violence by a group they ideologically sympathize with.

(Article by Hans Bader republished from LibertyUnyielding.com)

A federal appeals court made that clear in Dwares v. City of New York (1993). It allowed New York City police to be sued because they allowed flag burners to be attacked, when they likely would not have permitted such attacks on anyone else. Such viewpoint discrimination was forbidden by the First Amendment.

In Portland, police did nothing as Antifa attacked people nearby. For example, Antifa members viciously attacked journalist Andy Ngo on Saturday at a Portland rally. They assaulted him with fists and milkshakes that may have contained caustic quick-dry cement, sending him to the emergency room. Other video of Antifa shows “a group of masked thugs beating an elderly man in Portland with a crowbar and macing him.”

Andy Ngo is a photojournalist and editor at conservative-leaning Quillette. As Reason Magazine’s Robby Soave notes, an “antifa mob beat up a journalist … who posed no physical threat to them and was only there to document their activities — on a public street. This is indefensible, and yet there are tons of progressive-leaning people currently defending it, or at the very least rationalizing and making light of it.” It is unfortunate that some progressive journalists have chosen to minimize or excuse this violence, because it was aimed at a journalist for a conservative-leaning publication. (Ngo himself is a gay Vietnamese-American).

In response to these beatings, people have argued that the City of Portland needs to be sued for allowing (or directing) the police to not protect the victims. They have criticized the City of Portland and its left-wing mayor, who sympathizes with Antifa, for doing nothing. In response, other people have pointed out that police have no constitutional duty to enforce the law. For example, one lawyer notedthat “the Supreme Court upheld that officers have no legal duty to protect you.”

That’s true, but it is also irrelevant. It is true that Portland police have no duty to protect anyone. But once they protect anyone, they can’t selectively deny protection to victims of a left-leaning group like Antifa. Such ideological discrimination is forbidden. Portland does try to protect people attacked by right-wingers, and it generally does try to protect members of the general public against non-political violence when there is an obvious risk of it. It needs to give victims of left-wing violence the same protection.

There is no exception to constitutional protections for conservative victims, nor is there a “punch a Nazi” exception to the Constitution. For example, in Hernandez v. City of San Jose (2018), the Ninth Circuit Court of Appeals ruled that a city could be sued for increasing the risk that Trump supporters would be attacked.

Progressive journalists should stop minimizing Antifa violence when it is aimed at conservatives, because Antifa violence can happen to progressives, too. Being progressive doesn’t necessarily save people from Antifa’s wrath. In 2018, a progressive Washington Post columnist had her cell-phone knocked out of her hand by Antifa while covering a rally, and was told to F* herself. Antifa did this to her even though she shares Antifa’s antipathy to conservatives, and even though the Washington Post’s own “media columnist,” Margaret Sullivan, had defended Antifa in a 2017 column.