The First Amendment Protection Act prohibits political prosecutions and provides a private right of action against prosecutors who engage in them. It is an unfortunate, but necessary, step in protecting our constitutional rights and ensuring equal justice under the law.
Political prosecutions have been a problem throughout history, as those in power have often used the legal system to silence their opponents or those with whom they disagree. In recent years, this problem has reached a fever pitch with the raid on Mar-a-Lago and the launching of a criminal investigation against Kari Lake based exclusively on things she said on Twitter. In the administrative context, doctors who disagreed with the conventional wisdom on COVID faced the threat of administrative proceedings seeking to revoke their medical license if they spoke out. This bill rightly recognizes that a person’s political or religious beliefs, expression, or activism should not be a motive for either prosecution or persecution by agency bureaucrats.
Opponents of the bill argue that it will lead to frivolous lawsuits, but this concern is misguided. The bill requires that a substantial motivation for bringing charges must be political, meaning that prosecutors who act in good faith and have evidence to support their case will not be held liable. The bill is not a license for individuals to sue prosecutors simply because they disagree with the charges brought against them. Prosecutors who do not intend to do anything wrong should have nothing to fear, yet some oppose the bill as if their lives depended on it. Why?
Moreover, the private right of action provided by the bill is a necessary check on the unbridled authority of prosecutors. Prosecutors already enjoy significant power and discretion, and the threat of political prosecution only amplifies that power. Today, scores and scores of vaguely worded crimes litter our law books. It is, for example, a crime to slice your canned peaches wrong. As a consequence, every person is a criminal, even if they do not know it, and the only thing standing between you and jail is a prosecutor’s discretion. Good luck, then, if the prosecutor thinks you are a “MAGA fascist” – or that it would make for a welcome distraction from their own political scandals to put some leftist activists in jail for that matter. Allowing individuals to bring suit against prosecutors who engage in politically motivated prosecutions will ensure that prosecutors think twice before bringing charges based on a person’s beliefs or activism.
This is not a partisan issue. Regardless of one’s political beliefs, we should all be able to agree that weaponizing the legal system to silence or punish individuals based on their beliefs or activism undermines faith in the rule of law. This bill is a necessary safeguard in today’s superheated political environment and a step in the right direction towards ensuring that our legal system operates fairly and justly.
Alexander Kolodin is a Constitutional attorney and a state representative for Legislative District 3.