June 5, 2020
Dear Select Gentlemen of the Tennessee General Assembly:
The conduct that is being done in the name of "peaceful protest" is startling!
Most actions are neither peaceful nor a protest. Here is what our Tennessee Constitution says about it:
Article 1, Section 23. That the citizens have a right, in a peaceable manner, to assemble together for their common good, to instruct their representatives, and to apply to those invested with the powers of government for redress of grievances, or other proper purposes, by address of remonstrance.
Here is what the U.S. Constitution says about it:
Amendment I. Ratified December 15, 1791 -- Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
First, let's discuss the "PROTEST." A protest must be done WHERE the protested action was performed. If you wanted to protest Lowe's, you wouldn't go to Home Depot or to Ace Hardware. If you wanted to protest the police department, you wouldn't send your group to the fire department. If you wanted to protest the Nevada governor, you wouldn't go to Atlanta, Georgia. If you want to protest the Minneapolis police, you have to go to Minneapolis. Thus, these so-called protests are not legitimate protests at all. They are not protected by any Constitutional provision.
Note: Neither the state nor the federal Constitution authorizes a "protest," only the right to "assemble." I assert that "assembly" is vastly different from "protest." The Tennessee Constitution specifically indicates that the right of assembly is so that the people may "instruct their representatives" or to apply to the "powers of government" for "redress of grievances."
So you don't have an unalienable or Constitutional right to protest all police, because not all police did the thing that was unjust. In fact, I've made the argument that the protestors are complete hypocrites, because they are doing the exact same thing of which they complain: they are incensed that an innocent person was unjustly treated or accosted, yet they unjustly treat and/or accost others who are likewise innocent.
To summarize, in Constitutional language, "assemble" or "assembly" does not equal "protest." When people gather at a church or assemble together in a school, they are exercising the right to "assemble," but there is no corresponding right to "protest."
"PEACEFUL" (or its various forms) discussed
There's no real argument that breaking windows, setting fires, looting homes or business, etc. is a peaceful action, so I won't insult your intelligence by dealing with this point. It is self-evident that any conduct that results in a trespass upon private property or any destruction of private or governmental property is not "peaceful conduct."
But what if I and a few friends peacefully set up a lemonade stand in the middle of an interstate highway? Would that be "peaceable assembly?" Of course not. If I did such a thing, I should be cited for a breach of the peace, and I should not be able to sue anyone who ran over me. Similarly, if I blocked or barricaded a public sidewalk or a city street to pass out Bibles, that would likewise be a breach of the peace, even though I have a Constitutionally-protected right to freely exercise my religious beliefs.
Thus, it is also a breach of the peace for "protestors" to interfere with the flow of traffic, whether foot traffic or vehicular traffic. Said another way, when one exercises the right to "peaceably assemble," he cannot at the same time defeat other citizens' rights to be unmolested, to move about, to conduct business, to patronize businesses, or even exercise their own right of free speech.
Picture the "picket lines" that unions legitimately use on a public sidewalk --- they walk around with their signs and sometimes use chants, but they must not interfere with others who want to pass by on the sidewalk, nor may they become too loud so as to disturb the general peace or even interfere with the operation of the business they are protesting.
I recommend that we do the following:
1. We should propose legislation that absolves Citizen A from criminal prosecution and from civil liability if they harm Citizen B (or Citizen B's property) when Citizen B is protesting in a way that interferes with Citizen A's unalienable God-given rights, said rights being identified in the Declaration of Independence, in the U.S. Constitution, in the Tennessee Constitution, and in the historic English common law.
[Note: There should be no criminal immunity if the harm is deemed to have been carried out with premeditated malice aforethought.]
2. We should pass first a statute (because it can be implemented more quickly):
(a) which defines "peaceful" (and its various forms) so as to insure that the unalienable rights of other citizens are not infringed, and
(b) which defines "protest" in a manner where it is clear that any act of protesting against any governmental entity is illegal unless:
(1) it is done peaceably and only at a legitimate governmental office or place where the complained-of conduct has occurred. [Explained another way, we should not grant to the citizen a right to complain to someone who is not able to do something about the complaint. I explain to my church that a person is "griping," "grumbling," or "murmuring" when they talk to someone about a problem when that person cannot do anything to resolve the problem!]
(2) it is being performed in a manner which does not interfere with the unalienable rights of other citizens, such as their right to be free from: physical and verbal molestation, interference in their movement upon their own property or upon public property, invasion and/or destruction of their property, etc.
3. We should propose next an amendment to the Tennessee Constitution (because it will make the law organic and more permanent) which incorporates the statutory definitions of "peaceful" and "protest" as defined above.
THE PHILOSOPHICAL BASIS FOR MY RECOMMENDATIONS
I have long been of the opinion that there is one progressive strategy that has been more effective for their cause than any other: they avoid the legislative process (and thus, they don't have to expend energy or funds to persuade the public of the merits of their cause), because they simply get the courts to rewrite and/or redefine Constitutional provisions and other legal terms so as to be able to claim that the "law" is on their side. Therefore, in order to counter their strategy, we need to get some important definitions nailed down --- definitions which are, to the best of our ability, unassailable by the courts --- then we can start to slow the implementation of the progressive agenda.
Jeffrey A. Cobble, Esq.
Cobble Law Firm
Jeffrey A. Cobble
COBBLE LAW FIRM
1315 E. Andrew Johnson Hwy.,
Greeneville, TN 37745
The following is a letter that was emailed along with an 8-page position paper, to select members of the Tennessee General Assembly and County Government officials on April 2, 2020. Please take the time to read this letter and the proposition that follows it.
Dear Select Members of the General Assembly,
I am writing first to David Hawk and Jeremy Faison, who are state representatives for Greene County, where I live. As one of their constituents, I am asking them to honor their Constitutional oath by rising up to support and defend the unalienable rights of Tennessee citizens against governmental over-reach.
I have also decided that I should include the Lt. Gov and Speaker of the House in this email. After thinking about it more, I decided also that it wouldn’t hurt to also include a copy of this email to those members of the General Assembly who are known to be conservative and constitutionally-minded. So, if you are included on this email, you may consider that I have very positive feelings about you because of your track record in standing for principles of limited government. I hope that I am not wrong about any of you, but time will tell!
I regret that circumstances have arisen which require this action on my part. For the last several weeks, due to the Coronavirus contagion, we have had the President, our Tennessee Governor, and a large number of county/city mayors who have claimed authority to close businesses and/or to order residents to stay home. Since, to my knowledge, there has been no enforcement of these orders, I have waited to see what would happen.
Unfortunately, just earlier today, I learned that Governor Bill Lee has now amended his Executive Order to purport to make it mandatory that certain people stay home. [Some mayors had already made similar statements within the last few days, even threatening the arrest of non-compliant citizens, but since it wasn’t in my county, I let it go.] For me, though, this action by the governor was the last straw.
So, in response to this recent action by the governor, I have decided that I must respond to his usurpation by penning a position paper. Regrettably, I have had to put this paper together hurriedly, but nevertheless, I think it is sound in logic and reasoning.
To summarize, the paper articulates my view that NO government official at ANY level has the
authority to control the general public in the manner claimed. I trust that you will thoughtfully
read the attached 8-page paper to see if, in fact, you believe that the people have indeed
delegated to the respective governments the authority which the respective governments claim to have.
In the paper, I specifically address the “Emergency Management Powers” statute under which
our governor is currently acting, and I assert that said statute, in its current form, is blatantly
unconstitutional. For your ease of reference, I have cited a small but relevant portion of the
statute in my paper.
One last thing that I need to say: Executive Orders are not called Executive Orders because they
come from an Executive. They are called Executive Orders because they control conduct only
within the Executive Department of government. No executive, at any level, has the authority to
make law, to make rules of general application to the public, or to make regulations of general
application to the general public. Any such action would violate the principle of “separation of
powers.” My attached paper will explain this in more detail.
It then remains a question as to whether the General Assembly can, in advance, pass a law
pertaining to emergencies that will bring about interference with the unalienable rights of the
citizen to travel, work, shop, worship, etc. It is my position that even the General Assembly
cannot pass such a law without first amending the Tennessee Constitution. Just read the paper
and you’ll see why I take the position that I take.
For those who want to claim Constitutional authority to pass such laws, unfortunately, their
claim is just another example of officials who expand the meaning of the Constitution without
any textual support to make the expansion, and I have found that when officials take the
unwarranted power of expanding the meaning, it is almost always used AGAINST the liberties
of the citizen. We need to be reminded that the text says what the text says, and it means now
what it meant when enacted. If we want the text to change, we need to amend the Constitution,
not ignore it or expand its meaning.
Therefore, I can assure you that any action by state or local officials to try to civilly or criminally
enforce these baseless Executive Orders will be met with much resistance, and perhaps even
legal action, depending on the severity of the unconstitutional action.
Finally, for the record, I am not one to seek the spotlight. I do not wish to receive credit for
anything I have written. This is not about me; it is about sound principles of law. Therefore, you
have my permission to use excerpts, or the document as a whole, in any fashion that you see
fit. Forward it to anyone you choose. There is no need to credit me with anything; however, I
do ask that if you quote any portion of the paper, that you quote it accurately and in proper
If you feel the need to respond, please do so. Quite frankly, I have many other pressing things to
do besides dealing with issues like this, so don’t feel obligated to respond to me in any
fashion. However, I do hope that you will feel the duty to respond to the Governor’s office and
perhaps to the Attorney General. As for me, I intend to circulate this paper around to our local
government officials in order to warn them of the fact that our mayor is usurping authority not
properly given to him.
And, I suppose I should also say that if you think I have mis-analyzed, or if I am otherwise
wrong in my understanding, then please, do contact me so that I can consider your viewpoint or
perhaps reflect on something that I have missed. I want to take a principled approach to
everything I do.
Remember, if we are not principled in the small things, then we will also likely not be principled
in the large things. It is the measure of a man when he stands up for the rights of every person in
the face of opposition. I trust that each of you will have the discipline to limit governmental
power to its proper Constitutional limits, even if you think that the power is being used for a
“When treading upon a citizen’s constitutional rights, it is no defense to philosophize that ‘it is
for their own good.’ ” – Jeff Cobble
Jeffrey A. Cobble
COBBLE LAW FIRM
1315 E. Andrew Johnson Hwy.,
Greeneville, TN 37745