How the First Amendment Is Written Out of Providence Law

The end of Tony Lepore’s run as Providence’s holiday-season dancing traffic cop is a minor matter.  His contribution to Rhode Island’s quirkiness has been made, and no one should expect it to go on forever.  It’s becoming increasingly clear, however, that Providence Mayor Jorge Elorza does not understand the concept of civil rights — particularly those articulated in the First Amendment of the U.S. Constitution — and Rhode Islanders should take warning and ensure that his political career remains short and, certainly, that he doesn’t reach an office of any higher influence.

After an employee at a Providence Dunkin’ Donuts took the clearly inappropriate action of writing “#BlackLivesMatter” on a police officer’s coffee cup, Lepore organized a protest asking for her to lose her job.  This, according to the city’s public safety commissioner, Steven Pare, was unacceptable because “it appeared to the community that he was representing the Providence Police Department, and what he was saying was not reflective of this department.”

As a matter of constitutional law, Lepore’s case is in a gray area depending (frankly) on the judges he might draw for litigation, and he does not appear to intend to press the case.  News reports seem to suggest that he is technically an employee, in which case, there are two relevant considerations:

  • Was his speech addressed to “a matter of public concern”?  The nationwide contention between Black Lives Matter and police officers clearly qualifies.
  • Does Lepore’s right to express his viewpoint in public outweigh the “efficiency interests” of the city in operating its police force?  How a judge would rule on this point would depend whether he or she prioritizes evidence or ideology, but the case could clearly be made that a seasonal employee who directs traffic in an entertaining fashion would have minor (at most) effect on the ability of active-duty police to do their jobs.

If Lepore is not technically an employee, the case is arguably stronger.  Under those circumstances, the city has effectively been giving him a special permit to dance in the street while voluntarily directing traffic.  To base the granting of that permit on an unrelated political viewpoint that he has expressed publicly would be a clear infringement of his right to free speech.

The primary burden of enforcing the Bill of Rights, however, does not fall on judges, but on the voting public, and during his short time in office Mayor Elorza has established a pattern that conflicts with the principle that Americans are permitted to hold unpopular views of which government officials do not approve.  Earlier this month, the Providence police department fired an officer over what appears to have been two bad jokes, heard only by a handful of other officers, because they were racial in nature.  In October, the mayor and public safety commissioner pledged not to tolerate the furtive distribution of KKK recruitment literature, calling it a “hate crime,” although the only conceivable crime on which to peg the “hate” adjective would be littering.

This callous approach to the rights of people who do not conform with the mayor’s personal views was to be expected, however, after a law-review article by Elorza came to light during his campaign.  In it, the lawyer and judge argued that public schools should be able to teach that God does not exist. The nonexistence of God had been proven empirically to his satisfaction, so government schools could instruct children that their beliefs, and those of their parents and churches, were simply wrong.  Elorza went even further than that, while arguing that his legal opinion did not exclude the continued practice of religion:

That religion depends on the belief in a theist God is plainly false. Instead, the core of religion, if in fact there is a core, is a set of shared beliefs, values, practices, rituals, and symbols that bring people together to form a community.

Under Elorza’s own terms, therefore, it is clear that his administration has not only attacked the First Amendment rights of city employees and others, but is also in the process of violating the First Amendment’s provision against the establishment of an official religion.  If religion is made up of “beliefs, values, practices, rituals, and symbols,” then Elorza’s iron rule that expressions of bias against racial and ethnic minorities fall outside of the protections of the First Amendment constitutes an extra-legal imposition of a set of beliefs and values on the population.

The practical dangers of Elorza’s establishment of the identity-politics religion in Providence are:

  1. That doing so will foster not unity, but factionalism, as different groups enjoy different rights under the law, leading some to resentment and leading others to press their advantage
  2. That such principles, once accepted, tend to expand, meaning that the noose around what sorts of language and beliefs are permissible and where and how they can be expressed will be tightened.

One need only look to the fact that so few in public life, including those who consider themselves free-speech stalwarts in the news media, see any problem with Elorza’s various actions to observe how totally rights can be erased where nobody is willing to put down their own politics long enough to take uncomfortable stands in defense of civil rights.

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