Free Speech After Charlottesville

The deadly events in Charlottesville, where a white supremacist killed Heather Heyer and injured several others after a Unite the Right rally, have created a free speech reckoning for many, myself included.  After much thought, I have landed on the following ideas as ways forward.

Let’s not abandon viewpoint neutrality.  In an age where our President seeks to uncover the identifies of those who visit a website that coordinates protests against him, our First Amendment protections are more important than ever.  Indeed, in these dark times, our uniquely robust free speech protections are one of the few things that make me proud to be an American.


Unlike other countries, this country was built on the idea that the government – including public universities – cannot discriminate in the allocation of rights and benefits based on viewpoint.  Even “hate speech” is constitutionally protected in this country, and we should educate those misinforming people about their rights.  Universities cannot discriminate against student groups who wish to host speakers with offensive views, and cities and states cannot refuse to allow rallies based on the ideology of those seeking to march.

Let’s draw clear, principled lines between peaceful protest and violence and intimidation.  Of course, Charlottesville complicates these truths.  White supremacists holding torches, perhaps purposely emulating a lynch mob, create an atmosphere that doesn’t feel like a peaceful protest.  If protests are intended to create fear of violence, they can be restricted, although I do not think the Unite the Right rally met this high standard.  The Holocaust survivors in Skokie likely felt threatened as well by neo-Nazis bearing the swastika, the symbol of the death of their relatives.  The First Amendment requires an objective metric for when something is a threat – and an intent to intimidate.  That said, many of these protesters in Charlottesville came armed with guns or sticks.  The First Amendment guarantees the right to peaceful protest, but does not allow violent or destructive rallies.

Other public universities and cities are now cancelling rallies that appear similar to the one that occurred in Charlottesville.  These issues will likely end up in court.  My current view is that white supremacists, or White Lives Matter folks, or those opposed to increased diversity measures or immigration (I have trouble understanding the ethos of some of these rallies, which are a mélange of hard core and softer core white supremacists)  retain the right to peacefully protest.  They must demonstrate, however, that they encourage a peaceful protest.  Texas A & M has cancelled a rally because the organizers advertised the rally as “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M.”  Given that billing, the decision to cancel the rally over safety concerns may be constitutional.  Incitement requires an intent and likelihood to provoke imminent violent action.  Calling for a repeat of a deadly rally may, indeed, meet this standard, although I am loathe to lower the high bar for incitement.

Let’s not simplify the narrative.  A major problem, from a First Amendment perspective, is that the Unite the Right rally did not happen in a vacuum.  Without drawing a false equivalence between Nazis and those opposed to Nazis, we should recognize that a counter-movement, which is explicitly violent in its ideology, has assaulted white supremacists when they attempt to peacefully protest.  The Anti-Fascist movement, which originated in Europe – where they do not possess our free speech traditions, has popularized the “Nazi punch” and derided the First Amendment rights guaranteed to all of us.  Anti-Fascists create violent, destructive riots that have shut down not just white supremacist rallies, but peaceful university speakers whose ideas or methods they find offensive.  Prior to Charlottesville, when universities and cities cancelled events due to fears of violence, it was often because the localities expected a much larger, more violent counter-protest movement than any disturbance the alt-right would bring.  Not surprisingly, the white supremacists now come armed to these protests (more so than previous protests), and clashes between white supremacists and anti-fascists are overwhelming the police’s ability to keep the peace.

Nazis and Anti-Fascists are not the same, for many reasons.  Indeed, it’s hard to compare any evil to Nazi-ism and white supremacy.   A white supremacist just killed an innocent woman.  But we should remember that any group espousing violence as a tactic for dealing with offensive ideas is a danger to our free speech protections and culture.  We should condemn anyone who wishes to engage in violent behavior in response to peaceful protest, or to shut down or assault speakers trying to communicate.  The ideology of the anti-fascists is hypocritical and unsustainable, and has perhaps added legitimacy to the white supremacists’ misguided feeling of victimization.  The Anti-Fascists represent “the heckler’s veto,” but a listener’s violent response to speech is not justification for silencing a speaker.

Engage with those with whom you disagree, and reconsider heavy handed tactics like firing and shaming for those who aren’t actual white supremacists.  There are many actions we can take in our daily lives to undermine the extreme polarization and violence plaguing our protest culture.  For one, we should condemn all extremist, violent ideologies.  Violence destroys pluralism, which allows for a variety of approaches to life so long as they do not case physical harm to others.  To the extent that white supremacy is an inherently violent ideology, it is the worst contributor to our country’s current climate and should be treated as such (not to mention that it is hateful, harmful, ignorant, shallow, simplistic, ahistorical, and, well, insane).

Aside from condemning the most extreme among us, we should avoid contributing to polarization.  When someone writes a memo, or expresses a view, stereotyping women, we should engage with that person instead of firing him.  We should not say that there is no room in a company for those who have different views about gender, so long as that person can treat individuals equally.  We should listen to those with views that are not totally hateful but are outside of the mainstream, instead of marginalizing them further.  Hate is taught, but it is taught in many different ways.

Think before blaming the ACLU.  The American Civil Liberties Union made the correct choice to demonstrate its commitment to nonpartisan civil liberties by representing the white supremacists who wished to march in Charlottesville.  The ACLU has been criticized for its choice.   Those claiming the ACLU has blood on its hands, or is now allied with white supremacists, have a myopic and dangerously perverse perception of what free speech requires.  However much people wish it were not so, the ACLU has always committed its resources to ensuring that the most odious members of society retain their constitutional rights.  If the ACLU became just another organization advancing a partisan agenda, it would lose its credibility, integrity, and power.  The exercise of civil liberties is supposed to be unpopular.  Civil liberties are necessary because the democracy, and the popular will, would prefer to erode them to improve social welfare.  Individual rights exist despite the common good – because certain fundamental rights cannot be taken away regardless of popular will.

To maintain our First Amendment protections, even as our county devolves into violence and hate, would be an important victory.  Free speech is not an easy right, and it is certainly not free, but it an essential component of liberty, and of the equality for which we should continue to strive.

Edit: The Vice documentary on the rally is worth watching. The video is extremely disturbing and sad, so be prepared. This is excellent journalism.

14 thoughts on “Free Speech After Charlottesville”

  1. “The First Amendment guarantees the right to peaceful protest, but does not allow violent or destructive rallies.”

    Has anyone been arrested yet for blinding Baked Alaska?


    Matthew said that Baked Alaska may be suffering permanent eye damage because he can only see about 3 feet in front of him. Though that doesn’t necessarily mean he will have permanent damage.


  2. They arrested the guy who punched the reporter in the face.

    A female reporter has been punched in the face in a crowd of counter-protesters as she filmed the aftermath of a fatal car attack in Charlottesville.

    Witnesses said moments before the car plowed into the crowd, a counter-protester had allegedly thrown a rock at the car, causing the driver to swivel around and ram into people and two cars in its way.


  3. At least we can count on the police.

    Cornel West, the prominent professor and writer who attended a morning church service at First Baptist Church in Charlottesville with a large group of clergy members, said “the police didn’t do anything in terms of protecting the people of the community, the clergy.”

    West said that “if it hadn’t been for the anti-fascists protecting us from the neo-fascists, we would have been crushed like cockroaches.”


  4. “The First Amendment guarantees the right to peaceful protest, but does not allow violent or destructive rallies.”

    The first amendment doesn’t cover Brown v. Board, Roe v. Wade, or Lawrence v. Texas either.


  5. When Trump said “There was violence on both sides”,

    what republicans heard was “we will prosecute the man who maced Baked Alaska and punched the reporter in the face, even though those crimes pale in comparison to the driver murder, because its all illegal, and all illegal acts should be condemned”

    what democrats heard was “all illegal acts are equally morally wrong”–even though they believe only the worst act that happens each day should be publicly condemned so people don’t think that all illegal acts are equally morally wrong


  6. “Indeed, it’s hard to compare any evil to Nazi-ism and white supremacy.”

    But not impossible, thanks to Mao, Stalin, and Pol Pot.


  7. 2. The hard left seemed as hate-filled as alt-right. I saw club-wielding “antifa” beating white nationalists being led out of the park 2/2
    — Sheryl Gay Stolberg (@SherylNYT) August 13, 2017


  8. Does the ACLU have a “narrow reading” of the First Amendment?

    By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all.


  9. I think you got this exactly right but I have one nitpick/question.

    You say “They must demonstrate, however, that they encourage a peaceful protest.” Is that really true? It sounds like you are saying the burden on those (say in challenging a refusal to grant a permit on the grounds that not granting the permit is the only way to prevent violence) seeking to speak to prove they will encourage a peaceful protest. I would look this up and try and figure this out but I’m sure you know better than me so I’m just asking is this what you intended to suggest?


    1. Thank you for this. I was suggesting that if leaders want to defend against a claim that their protests are unprotected incitement or true threats (an argument that is viable given Charlottesville and the invocation of Charlottesville), they should make clearer that they encourage peaceful protests.


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