Trying to Play Fair

I enjoy reading Reason magazine, agreeing or disagreeing with them almost half of the time each. Sometimes even when I'm in robust agreement with them, I find their shading a little off. 

This time, for example: I completely agree that carrying or even distributing political propaganda is protected First Amendment speech. The First Amendment was first and foremost about protecting political speech, which often turns to polemic, satire, or outright propaganda. 

Federal prosecutions against nine members of what the Justice Department calls a "North Texas Antifa Cell," allegedly responsible for an anti-immigration enforcement demonstration that turned violent in July, are scheduled to move forward to arraignment next week. The supposed members are facing charges that range from attempted murder to providing materials to support terrorists. But it is one defendant's case, based on the transportation of "anti-law enforcement, anti-government, and anti-immigration enforcement documents," that raises serious First Amendment concerns....

...these materials, although controversial in their advocacy for insurrection, squatting, and anarchy, are all squarely constitutionally protected speech. The government cannot infringe upon one's First Amendment right to read, possess, or write—unless the author is inciting imminent lawless action—anti-government or pro-revolution literature. And while some may see the ideas in Sanchez's box as dangerous, anti-government zines and pamphlets are far more similar to the Revolutionary-era literature popular when the First Amendment was passed than today's social media landscape, as Seth Stern of The Intercept points out. 

However, after President Donald Trump signed an executive order in September designating "antifa" as a "major terrorist organization, prosecutors, like the ones in Sanchez's case, are attempting to use materials that "explicitly [call] for the overthrow of the United States Government, law enforcement authorities, and our system of law" as evidence of criminality, despite their constituitonal protection. 

So, yes, but at the same time also: "...an anti-immigration enforcement demonstration that turned violent" radically understates the facts of the case. This was not a 'demonstration' that 'turned violent,' it was a demonstration whose sole purpose was to lure law enforcement into an ambush:

According to the charges, after Antifa Cell members arrived at Prairieland, they began shooting off and throwing fireworks at the facility and vandalizing vehicles and a guard shack on Prairieland property.

According to the charges, an Alvarado police officer responded to the scene after correctional officers called 911. When the officer began issuing commands to defendant Nathan Baumann, Benjamin Song allegedly yelled, “get to the rifles!” and then opened fire on the officers, striking the Alvarado police officer in the neck as the unarmed correctional officers ducked and ran for cover. Police arrested most of the Antifa Cell shortly after the attack, many near the scene. 

Forty years or even forty days for carrying a box full of writings the government doesn't like is unconstitutional nonsense. Let's not downplay why the Federales are so stirred up about this one, though. The fact that the cell were bad shots doesn't mean they weren't playing a very different sort of game from the 'mostly peaceful protests' we usually see.