The decision of the District's Corporation Counsel not to prosecute anti-apartheid demonstrators was made for the wrong reasons.
It is often said that hard cases make bad law. The cases involving anti-apartheid demonstrations at the South African embassy are such hard cases. I should state first that I am in complete sympathy with the demonstrators. Indeed, I walked the picket line at the embassy on Christmas Day. But we should not, in our zeal to oppose the immorality of apartheid, lose our own sense of justice and the rule of law in the District of Columbia.
Recently, the D.C. Corporation Counsel dropped charges against five of the demonstrators arrested at the embassy for crossing a police line. There are, I believe, good and sufficient legal reasons for dropping the charges. Similar charges have been dropped both here and in other cities on procedural grounds. But the reasons given by the Corporation Counsel for declining to prosecute these cases strike at the very heart of the rule of law and our constitutional protection of free specch. The announcement of the refusal to prosecute stated that "(i)t would be untenable for the office of the corporation counsel to prosecute these five individuals who demonstrated peaceably to call attention to the gross injustices which result from the South African policy of apartheid."
Demonstrating is constitutionally protected speech. Provoking arrests is a further communication of our opposition to apartheid. If there is anything essential to our right of free speech in ths country, it is that the government in enforcing the laws shall not consider the content of the speech, other than if there is a clear and present danger to public safety. But here, the corporation counsl has stated that there is "good" speech communicating ideas that the government agrees with, and presumably "bad" speech with which the government disagrees. The prosecutor will determine whether or not to enforce the laws based on whether or not he or she agrees with the content of the communication. This is unacceptable in a free society.
If carried further, a prosecutor who opposed abortion could refuse to prosecute raiders of medical clinics and a segregationist prosecutor could refuse to prosecute cross burners because the prosecutor agreed with the beliefs of the perpetrators.
The District government should immediately publicly announce that it will not in any way consider the political views of any person in determining what is within and what is outside the law and who will be prosecuted and whose action will be condoned. To do otherwise would cheapen the First Amendment to the Constitution.