Protection vs. Free Speech: Dan Bishop On His Controversial Proposal

Jan 25, 2017

Senator Dan Bishop, Republican from Mecklenburg County
Credit NCGA

The North Carolina General Assembly is now back from its January break. And during this session, one Mecklenburg County Republican senator says he will introduce a bill to protect former elected officials from angry protesters. But opponents say it would infringe on First Amendment rights.

Dan Bishop is no stranger to controversial legislation or the heckling and unkind words that follow.

Bishop was a chief sponsor of House Bill 2 last year. The bill was then quickly signed into law by then Governor Pat McCrory. And that legislation is why McCrory encountered this last weekend in Washington, D.C.:

For more than three minutes a knot of protesters followed McCrory chanting "Shame on you! Shame on you!" They called McCrory a bigot, anti-gay and the occasional expletive was thrown. But that was it.  No punches, or anything physical. 

Eventually McCrory is let into a side door and a uniformed officer tells the crowd to leave.

The video made the news. And that’s where Dan Bishop, now a newly elected state senator comes in. "I saw the video. I think the conduct was indecent," says Bishop, "and there was a particular moment when one of the people accosting him said, 'we’ve got you now.'" There was more. "Because McCrory was pinned against the door trying to get in, that’s, that’s borderline."

Borderline assault in Bishop’s mind. And for those not familiar with legal definitions assault is an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact. "And here’s a governor who’s taken a tremendous amount of personal abuse," explains Bishop, "And this sort of riotous sort of protest is now a technique that is common place by certain folks."

Folks Dan Bishop called "ubiquitous leftist rioters," though he now calls that hyperbole. Still, Bishop says McCrory may have been fearful. "And the line, you never know when the line is going to be crossed and he may be in personal danger and he has no protection."

So Bishop plans to introduce a bill this session to make it a crime, punishable up to five years in prison, to “threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties.”

And he points to a state law and a DC statute as his inspiration.

First, Bishop explains the North Carolina law. "There is one that protects existing legislative or judicial officials and it also protects people who have been elected but are not yet serving. It does not protect former officials."

But these laws are often on the books to stop strong arm corruption – not protect private citizens.

As for the DC statue? We asked Arthur Spitzer for his opinion on the comparison. He’s legal director of the DC chapter of the ACLU.

Spitzer watched the video of McCrory and the protesters and he doesn’t believe the DC statute would apply in that case. "It was intended to protect government officials and employees from, I think, serious threats and harassment."

Protests, Spitzer says, is something current and yes former government officials have to deal with. "I think public officials are required to tolerate a higher degree of vituperation than ordinary people including ordinary public employees."

There is, however, another potential issue with what Bishop is calling for. The public’s first amendment right to freedom of speech.

Democracy after all is messy. It can be a sometimes vulgar affair. Now, we don’t have details of this bill as of yet – Bishop says it will be submitted soon – but free speech advocates including the ACLU say this law could stifle freedom of speech.

TB: This is the kind of law that could easily be challenged in terms of First Amendment rights, your right to protest an elected or formally elected politician.

DB: Well, look I’m familiar with the First Amendment (laughs). But assaultive conduct has never been protected under the First Amendment. Whether or not this constituted assault, I don’t know. Probably not.

But he adds, there is a potential risk there and it makes sense to address it before it occurs. Senator Dan Bishop is also calling on the General Assembly to “take other appropriate steps to guarantee the personal safety of Gov. McCrory by all means necessary.”