In the short run, the marketplace of ideas does not always sort out truth perfectly. Indeed, many false statements and bad ideas continue to propagate in diverse, fairly open free speech communities such as Twitter. Some of the worst offenders, unfortunately, are politicians, as Part One’s installment on Donald Trump and Howard Dean demonstrated. This installment tackles Portland Mayor Ted Wheeler’s tweets that the government should not issue rally permits to those who he (perhaps rightly) believes peddle hate speech – and exposes those who endorse his legally and philosophically incorrect views about the First Amendment.
In the aftermath of last week’s murders in Portland, where two men were fatally stabbed by a man harassing Muslims on a train, Mayor Ted Wheeler has claimed that the government should deny permits to two rallies that he believes perpetuate “hate speech.” On June 4th, the federal government has issued a permit for a rally called “The Trump Free Speech Rally,” and another rally is planned on June 10th called “March Against Sharia.” Mayor Wheeler said that he will not issue permits for both rallies and has called for the federal government to revoke the June 4th permit and deny the June 10th permit.
As noted in Part One of this series, “hate speech” is fully protected by the First Amendment. This is well established law that our politicians should make a greater effort to learn. Other countries do not protect hate speech, but no country has our robust constitutional protections for speech. (As one striking, recent example, France has banned commercials by parents of Downs Syndrome children because these commercials may offend women who have aborted fetuses shown to have an extra chromosome. This type of repressive tactic in the name of progressive values is, unfortunately, also evidenced by Mayor Wheeler’s approach.)
Mayor Wheeler’s tweets are not just legally incorrect. If the federal government actually listened to his requests, or if Wheeler has the power to deny permits, that would indicate unconstitutional government actions. Mayor Wheeler and the federal government cannot, legally, deny these permits. Permit schemes give the government authority to shut down speech before it is uttered, and thus must comply with constitutional requirements. The Supreme Court has held that the government may not deny permits on the basis of viewpoint, nor may a state even charge more money for certain speakers to obtain permits even if controversial speech entails higher security costs.
Mayor Wheeler’s desire to protect his city from alt-right groups, especially in the wake of such terrible, hate-inspired murders, is understandable. But, this desire was similarly not legally justifiable in Skokie, Illinois, a town with thousands of Holocaust survivors, whose families and friends had been murdered by the Nazis.
And, there is good reason for this case law. Because the chief concern of the First Amendment is viewpoint discrimination, free speech protections require that the government take a neutral stance towards speech. In opposition to this view is another disturbing fallacy spreading around Twitter, and the cultural milieu in general: that championing free speech is tantamount to enabling or even endorsing that speech.
In the era of the “Nazi punch,” a growing divide between center-left liberals and more radical leftists involves whether to respect the First Amendment rights of hateful speakers. Many of the arguments of those farther to the left hinge on the idea that preserving free speech rights for a bigot enables that person to thrive and cause more social and political damage. Those who adopt a neutral stance on free speech are thus complicit, to some degree, in that person’s ability to communicate his hateful message.
This argument is both legally and philosophically unsound. First Amendment protections for all depend upon a sharp divide between the extent of free speech rights and the content of a message. The government no more endorses the views of racists when allowing them to peacefully speak than it endorses the views of newspaper editorials favoring Democratic or Republican candidates, protesters of the Dakota Access pipeline, or advertisements favoring either Coke or Pepsi. The same should be said of individuals who explain this necessary First Amendment premise.
Further, although speech sometimes has an attenuated connection to violence, there is also evidence that allowing racist speech prevents it from being driven underground. What looks like enabling racists allows that speech to be aired, and counter-protests to be staged. The First Amendment has protected marginalized groups and racists alike. Philosophically, the left should not abandon free speech values and leave them to the right. By denying permits to these rallies, Mayor Wheeler is ironically providing extra justification for The Trump Free Speech rally. It is a sad day when alt-right protesters appear to care more about our robust free speech protections than the mayor of Portland.