by Steve Timmer

May 20, 2018, 10:30 AM

What color are your herring?

Somebody might not get to see her dying mother.

An ambulance might not be able to get through.

A protester might get hurt.

These and others are all reasons supporting the Elk River Republican Nick Zerwas’ bill to treat protesters blocking freeways more harshly than other violators.

The scolds on the Strib’s editorial board are the latest to weigh in on this, urging its passage. Zerwas’ bill did pass both houses of the legislature, but the governor is poised to veto it. Good for him.

There is a thing in legal argument called the “parade of horribles.” For the most part, it is just speculation about the awful things that might happen if a court rules a certain way or a legislature passes, or doesn’t, a particular law. Usually, they are red herrings, as here. The parade of horribles is a favorite tool of editorial boards, and it is commonly employed by lawyers and editorial boards when the logical and reasonable arguments are against them. It is a non-musical form of “We’ve got trouble right here in River City.”

In other words, if somebody arguing a point starts to sound a little like Harold Hill, you should be skeptical. Even more skeptical than Marian the Librarian.

The Strib editorial board recognizes that the premise of the bill is to impose heavier penalties on protesters over ordinary scofflaws. It is the expressive purpose that is singled out for enhanced penalties. You would think that an outfit that is braying about its right to shove a camera in every defendant’s face – and probably somewhere else – in a courtroom might defend somebody else’s First Amendment rights.

But sadly, you would be wrong.

We must balance the First Amendment rights of the protesters against the rights of the public says the Strib. Remember, though, that all of the ordinary penalties against civil disobedience still apply; it is one of the reasons we pay attention to civil disobedience, as the Strib correctly recognizes. The bill doesn’t balance anything, though; it just piles on protesters.

But don’t worry, says the Strib; the enhanced penalties are a “ceiling, not a floor.” Unwittingly, the Strib has admitted that the purpose of Zerwas’ bill is to chill First Amendment expression by holding an extra club over protesters heads. I couldn’t have said it better myself. Thank you, Editorial Board.

Thomas Haines, the most recent Spotty™ medal winner, disposed of most of the red herring arguments neatly when he observed that events and rush hour traffic clog the freeways, too. Sometimes they do it longer and better, especially if there is a snowstorm.

Attempts to criminalize expression are irresistible to those in authority who are annoyed by people who don’t agree with them. Most readers here are familiar with efforts to criminalize persons who participate in a boycott against Israel and its West Bank colonies. Here’s a graf from the ACLU blog about a recent version of the federal bill:

But this latest version would still allow people who boycott to be slapped with criminal financial penalties. It suffers from the same fundamental flaw as the original draft by criminalizing participation in constitutionally protected boycotts. In fact, the bill’s sponsors openly admit that it was designed for this purpose. In the press release accompanying its announcement, Sen. Mike Crapo (R-Idaho) described the bill as an attempt to “combat Boycott, Divestment, and Sanctions (BDS) efforts targeting Israel.” Sen. Sherrod Brown (D-Ohio) also characterized the bill as “anti-BDS legislation.” Although the bill states that “[n]othing in this Act . . . shall be construed to diminish or infringe upon any right protected under the First Amendment,” these words ring hollow in light of the bill’s obvious purpose.

Just as the Strib saying that nothing in Zerwas’s bill infringes First Amendment rights of protesters rings hollow, too.

And yes, Virginia, there really is a Senator Crapo.

Now, as I have written before, I don’t think that freeway protests are effective tactically. It would be much better to protest where it would be safer, and the protest would be seen by more people, like the Mall of America.

Oh, right.

Update 5/21: The governor did veto the bill.