KSL Investigates: Does armed protest have a chilling effect on free speech?

SALT LAKE CITY — A summer of protests highlighting the First Amendment’s protection of free speech has culminated in a movement highlighting the Second Amendment’s protection of the right to bear arms.

Members of Utah Citizens’ United have begun showing up at protests against police brutality carrying semi-automatic rifles.

Critics said that has a chilling effect on the freedom of speech.

So what happens when those two constitutionally protected rights seem to conflict with one another?

As the KSL Investigators learned, legal precedent has some catching up to do.

What is Utah Citizens’ Alarm?

Provo native Casey Robertson formed Utah Citizens’ Alarm after a protest in his hometown on June 29 ended in a shooting when a protester opened fire at a driver whose vehicle was being blocked at an intersection.

“It hit home that the violence is now here,” Robertson explained.

That is when he took to Facebook and put out the call for support.

“Who wants to come down there with me and show ‘em we’re not going to put up with violence in our town,” he said about his Facebook post.

Members of UCA have since attended rallies across Utah, oftentimes wearing military fatigues, tactical gear and carrying AR-15 style rifles. Many also wear face coverings, making them unidentifiable.

They show up to protests, Robertson said, to show solidarity with law enforcement.

“We back law enforcement 100% as a group and they appreciate that because law enforcement is getting a horrible, terrible name right now,” Robertson said. “We’re simply there to be eyes and ears for the police and just be a deterrent for violence. That’s it.”

When asked if he encourages members of his group to come armed to protests, Robertson said, “We encourage people to be aware of the laws and follow them closely.”

“I’m not sorry if we’re intimidating. I’m not. Utah citizens want to be intimidating. We don’t want violence here in Utah. We do not want chaos and anarchy,” Robertson continued.

While violence and property damage have occurred, of the dozens of protests that have taken place in Utah this summer, most have been peaceful.

Deterring free speech?

While Robertson and his members argue their presence at protests absolutely deters violence, property damage and destruction, activists like Josianne Petit believe what UCA’s presence really deters is people from exercising their First Amendment right to protest.

Petit started an organization for parents of black children called Mama and Papa Panthers. She has used her voice to speak out at many protests this summer.

“They say they’re there to keep the peace. Well, the way my group and like groups have shown that we’re here for non-violent protests is we don’t bring enough ammo to take out a small village,” Petit said. “They are weapons of war. They are not made to disarm or disable an opponent.”

Petit is passionate and outspoken about the need for police reform and the need to end police brutality. She is demanding change and knows doing so is her First Amendment right.

“We’re just asking for the same treatment when we engage with police officers as white people have come to expect,” Petit said. “It’s the cause of liberation.”

She said the presence of heavily armed, masked men and women at largely non-violent protests has resulted in serious fear. In some cases, the concern for protesters’ personal safety is so concerning, she said, they are shying away from exercising their First Amendment right.

“Their tactic is working, right? It’s silencing the vast majority of black voices here in Utah,” Petit said.

She’s equally worried about another intimidation tactic she said is employed by members of UCA.

“They have made a point of stalking us at every single event that we hold,” she said. “They just monitor our Facebook page and if we say we’re going to an event, they show up.”

Robertson admitted that as his group grows, it’s expanding – focusing on intelligence gathering.

“We have quite a few people that have stepped up and that have created false accounts where we can infiltrate some of their conversations and some of their planning and groups,” Robertson said.

Law enforcement perspective

The KSL Investigators went to Jess Anderson, commissioner of the Utah Department of Public Safety, to get his perspective on UCA and similar groups.

“We appreciate their support for law enforcement,” Anderson said specifically about Utah Citizens’ Alarm, “However, it’s not done with the proper training. It’s not done with a proper perspective or understanding.”

He made it clear: when it comes to law enforcement’s interactions with UCA and groups like it, there is no working relationship.

“Listen, we didn’t request you. You’re not the backup to the police,” Anderson explained. “They’ve been respectful of that so far, but it causes concern to the law enforcement community just because it puts us in a very peculiar situation, knowing and understanding that if something were to happen, guess who’s caught right in the middle of this? It’s now the police [who] have an armed standoff.”

As for UCA’s aim of intelligence gathering, Anderson said, “We, in the policing world, have all of our access to good intelligence, to which we are using in a most respectful way.”

No clear legal precedent

At what point do intimidation tactics cross the line and infringe on protesters’ Constitutional rights? University of Utah law professor RonNell Andersen Jones said there’s little clear legal precedent.

“Certainly the Supreme Court has recognized that if someone engages in a behavior that rises to the level of being what the court calls a ‘true threat,’ then it loses its First Amendment protection and your capacity to express yourself with a weapon in your hand changes. You don’t have the ability to continue to invoke Constitutional protection and the government can regulate you from threatening other people in that way.”

However, the courts have not decided if a large number of firearms at a public protest rises to the level of a true threat.

“The bare existence of the firearm on their person under Utah State law isn’t necessarily a threat against another person. It’s an exercise of the open carry right,” said Jones. “We’re still waiting for jurisprudence from the United States Supreme Court that helps us to understand the boundaries of firearms in public.”

Case law may not be far away.

“There are lots of test cases that seem to be emerging all across the country as the Black Lives Matter movement and other protest movements are generating these conflicts on a scale that we haven’t seen before,” said Jones.

“It’s actually, in some respects, quite remarkable that we’ve had since 1790, to have some of these conflicts emerge and haven’t had the chance to sort of tussle with them,” she said. “But it’s also a uniquely modern problem with modern firearms and with modern protest movements. And so sometimes it takes time for the Constitution to catch up with the problems that we face in the real world.”

UCA’s Antifa concerns

Casey Robertson said his group believes in the right to peacefully assemble and peacefully protest.

“We don’t exist to show up at protests,” said Robertson. “However, we’ve seen that these protests tend to get violent and Antifa is working through these protest groups to get their point across – which is disruption and anarchy.”

Antifa – short for “anti-fascists” – is a political group with no leader and no clear organization. Their ideology embraces violence as a tool to combat far-right extremists and white nationalist groups.

And it’s who Robertson believes is the real enemy of America.

Anderson, however, said Antifa is currently no cause for concern in Utah.

“As far as identifying who those somewhat terrorist groups are, or otherwise really anarchistic groups, we do keep a close watch on that,” Anderson said. “By and large, we do not see that being an issue or a problem to the point where it’s causing us complete panic or concern.”

UCA Facebook Removed

Less than two months after Robertson created the Utah Citizens’ Alarm page on Facebook, it had attracted nearly 20,000 members.

Facebook shut down the page on Aug. 19, along with nearly 1,000 other accounts. The social networking company said the move was aimed at limiting violent rhetoric tied to anarchists, political militias and followers of the Q-Anon conspiracy theory.

According to NBC News, Facebook’s policy states, “Pages, Groups and Instagram accounts associated with these movements and organizations will be removed when they discuss potential violence.”

Robertson said that will not deter his members. They created a website to continue operations online.

“UCA is still here. We are still strong. This Facebook thing in no way will affect the momentum that we have created,” Robertson said in a video posted on Monday.

Robertson said he is working on more formally organizing the group by providing members with training and legal support.

He also said UCA is more thoroughly vetting its members and hopes to change their image.

“As we’ve grown, we’ve realized that an AR may not be the best thing to be carrying in a situation like that,” Robertson said.

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