I’m not sure that’s possible in this situation.

FIRE is in Ethics Zugzwang.

The Foundation for Individual Rights and Expression bravely and admirably expanded its mission when it became clear that the ACLU no longer cared about protecting the rights of all Americans, just those whose political views it supported. Now the expanded FIRE is trying its mightiest to maintain a politically neutral stance while involving itself in the current rebellion against the rule of law and immigration enforcement in the “sanctuary” states and cities.

Stipulated: This is unquestionably the right position for a civil rights watchdog to take. I also believe it is a position that cannot be effective or even coherent.

The latest statement by FIRE is an essay on its website called “The Alex Pretti shooting and the growing strain on the First Amendment.” Everything in the essay is fair and accurate. Unfortunately, FIRE’s position is likely to get people killed, as fair as it seems. Or in the immortal words of my father’s favorite epitaph,

He was right, dead right

As he sped along

But he’s just as dead

As if he were wrong.

The points FIRE makes about Pretti are arguably legitimate:

Whatever comes of the investigation, this moment demands a reaffirmation of basic First Amendment principles that the administration increasingly undermines by collapsing protected expression into criminal conduct.

First, Americans have a right to protest peacefully. That right doesn’t depend on the cause or politics involved. Whether you are protesting immigration enforcement, the president, abortion, or COVID-19 restrictions, you have a right to go outside and make your voice heard. But the administration has shown a pattern of hostility toward this nation’s long tradition of peaceful protest and dissent, including threatening demonstrators with “very heavy force” and targeting universities and foreign students over protest activity. In September, the administration released National Security Presidential Memorandum 7, which links disfavored viewpoints to domestic terrorism, notably “extremism on migration,” a term left undefined. 

Second, Americans have a right to observe and record law enforcement officers performing their duties in public. Government officials sometimes abuse their power or make mistakes, and public observation and recording are essential tools for documenting misconduct and holding officials accountable. Nobody has a right to physically interfere with law enforcement. But officials have claimed — incorrectly — that it’s illegal to follow and videorecord federal agents or to share photos and videos of them online. Just last Friday in Maine, video revealed a masked ICE agent telling a woman recording him that he was taking pictures of her car because “we have a nice little database and now you’re considered a domestic terrorist.” 

The administration’s invented or distorted definitions of “impeding,” “obstructing,” or “doxxing” have no basis in the law and are inconsistent with the First Amendment. 

Third, Americans don’t forfeit First Amendment rights when exercising their Second Amendment rights. That was true when demonstrators opposing pandemic restrictions openly carried guns at the Michigan statehouse. And it’s true for those protesting immigration enforcement today. In some contexts, displaying the firearm itself is part of the expressive message. Threatening others with a firearm is plainly illegal, but legal carry cannot justify suppressing protected expression or using deadly force.

All true, and also, “Yes, BUT…”

1. The context of Pretti’s actions was not a peaceful protest, but an ongoing organized effort to interfere unlawfully with law enforcement. FIRE cannot pretend that the context doesn’t materially effect the First Amendment protection. If Pretti were only “making his voice heard,” he would not have come into contact with I.C.E. officers. The context of his speech edged into “Fire in a crowded theater” territory.

2. Maybe Pretti was just quietly, peacefully recording the events. It certainly appears that the strategy was to provoke an over-reaction by I.C.E. and have a record of it.

3. As for the Second Amendment, this is gray area that needs Supreme Court clarification. The false comparison I am seeing in the news media and from the anti-I.C.E. mob is that it is hypocritical to fault Pretti for carrying a firearm into an illegal confrontation with I.C.E. while Kyle Rittenhouse was defended when he carried firearms into a Black Lives Matter riot. Rittenhouse was legally preparing himself to defend his life against criminals. Pretti’s weapon was for another purpose, and law enforcement officers could reasonably conclude that the purpose was to oppose or threaten them. I have previously raised the hypothetical involving a Pretti clone carrying a baseball bat or a chainsaw into an I.C.E. confrontation with protesters as they try to interfere with their operations. Would it not be reasonable for officers to view this a threat?

FIRE also criticizes the Administration’s characterization of Pretti’s conduct. “The drumbeat of statements from the administration that are openly hostile to basic First Amendment rights should disturb every American, FIRE intones. “And when Americans see someone shot dead in the street shortly after recording federal agents — and then hear top government officials immediately justify the shooting before any investigation can begin — they will reasonably fear that exercising these rights carries not just legal risk but physical danger.”

Again, context matters. Minnesota officials are egging on citizens to interfere with I.C.E., calling illegal activities “protests.” Federal law enforcement has a legitimate interest in discouraging such “protests” that go beyond acceptable First Amendment standards. There would be no need for Administration voices erring on the side of expressing hostility against over-zealous protests or warning citizens that such conduct can place them in harm’s way, if local officials properly instructed citizens to protest from the sidelines.

I admire FIRE for walking this tightrope; they have their integrity and reputation to protect with an important mission at stake. However, appearing to reflexively take the side of those deliberately opposing Federal law enforcement will harm their effectiveness now and later.

This is a time for nuanced analysis, not abstract grandstanding, but civil rights watchdogs tend to err on the side of absolutism. FIRE may be wrong whatever position it takes.