Top leaders in Colorado’s National Guard are behaving badly.
They are playing politics as they go after a JAG officer who is outspoken in his own time supporting Black Lives Matter and advocating for Kurds who risked their lives to help America.
Alan Kennedy is a captain serving as a judge advocate in the Colorado National Guard. He also has written guest commentaries for The Denver Post. His Post opinion column about police aggression he witnessed during a May 30 Black Lives Matter protest in Denver drew the ire of top command.
Now Kennedy has filed a federal suit against the National Guard arguing that a provision in their rules that prohibits participating in events where “violence is likely to result” is unconstitutional under his First Amendment right to assemble and free speech.
We think Kennedy is on solid ground.
A few details are essential in this case – Kennedy is a part-time member of the National Guard. He attended the Black Lives Matter protest on his own, and he did not wear his uniform or engage in any unlawful activities, which themselves are expressly prohibited. In fact, the only evidence that Kennedy was at the protest is his opinion column that was published in The Post.
Surely the U.S. government doesn’t expect members of the Guard to put their rights on the sidelines when they serve only part-time? Kennedy’s writing and his participation in the protest in no way violated any laws. He didn’t share any classified information. He didn’t act violently.
The reprimands and negative reviews he received were all based on the arbitrary, capricious and likely unconstitutional rule suggesting that someone attending a protest is in the wrong even if they themselves didn’t engage in unlawful activities. In this modern era of heated public discourse, who is to be the judge of which political movements are “likely” to become violent versus which are “likely” to remain peaceful? Such a rule invites the opportunity for — and the appearance of — viewpoint discrimination. Consider Vietnam protests or the Tea Party Rebellion of the bygone era. A prohibition from the government of assembling for a cause if there is “likely” to be violence would have a chilling effect, prohibiting engagement in some of the most meaningful protests of our times. Were the Black students who refused to leave the lunch counter in North Carolina in 1960 knowingly engaging in an activity that was likely to turn violent? Absolutely. But the students weren’t the violent ones.
“Like thousands of others, I was tear gassed on Saturday. In broad daylight. Hours before curfew. On a peaceful march. Denver police officers, who showed up in full riot gear, opened fire with tear gas, flash bang grenades, and pepper balls. The police fired without provocation unless you count residents marching peacefully from the Capitol east on Colfax and north on Washington.” Kennedy wrote of his experience. Sounds like the protesters weren’t the ones being violent — on that May day, anyway.
At the Save America Rally in Washington, D.C., on Jan. 6 many attendees who didn’t unlawfully enter the Capitol or participate in violence against Capitol police probably did not think violence was “likely” despite President Donald Trump’s assurance before the event that it would be “wild.” Who is to be the judge of “likely”? Certainly not the government, an entity that should run away from passing any such judgment on political activity as quickly as possible, lest they be accused of viewpoint discrimination.
We’re glad Kennedy isn’t backing down from this debate. His record shouldn’t be marred and future promotions shouldn’t be withheld for participating in a sacred American right.
The good news is that it seems the Adjutant General of the Colorado National Guard – Brig. Gen. Laura Clellan – may be reconsidering the wisdom of this rule. She issued an order this month that the National Guard’s command stop enforcing the provision of the rule pending Kennedy’s case.
We think it’s probably likely, given the attention this case has drawn and common sense, that Assistant Adjutant General Doug Paul and the chief of staff, Colonel Charles Beatty, may also be regretting targeting Kennedy for harassment which began after Kennedy’s video opinion piece for The New York Times was published in October 2019 advocating for the U.S. government not to abandon the Kurds. A full investigation found that Kennedy did not violate any rules or regulations in voicing his opinion on his own time.
It’s time for top leadership in our state’s proud and storied National Guard to admit they got this one wrong.
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