On 17 August 2017, the Washington Post and other outlets reported on a joint statement released by the Northern, Central, and Southern California chapters of the American Civil Liberties Union in response to the violent white-supremacist and neo-Nazi rally in Charlottesville, Virginia on 12 August 2017, which stated in part:
For those who are wondering where we stand — the ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble. We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence.
If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.
Early reports framed this stance as being at variance with the national chapter, which has publicly and sometimes controversially defended the civil rights of far-right hate groups, including some who organized the Charlottesville rally. In a Washington Post blog, First Amendment law professor Eugene Volokh mused: “…as I understand the traditional position of the ACLU, it is that speech and assembly must be allowed, even if violence and unprotected incitement (or threats) at the event are punished.”
One day earlier, the Executive Director of the national office, Anthony Romero, had made a separate statement on the issue of defending the free speech rights for all, “including speech we abhor,” which was less explicit about limits on white supremacist incited violence:
Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open.
We reached out to the national chapter of the ACLU, and were provided comments by Romero which stated — contrary to reports — that there was no rift in messaging between the chapters:
We agree with every word in the statement from our colleagues in California. The First Amendment absolutely does not protect white supremacists seeking to incite or engage in violence. We condemn the views of white supremacists, and fight against them every day.
At the same time, we believe that even odious hate speech, with which we vehemently disagree, garners the protection of the First Amendment when expressed non-violently. We make decisions on whom we’ll represent and in what context on a case-by-case basis. The horrible events in Charlottesville last weekend will certainly inform those decisions going forward.
The brief suggestion of a rift, however accurate or inaccurate those reports may have been, highlights the murky relationship between the First Amendment and hate. These questions have moved increasingly into the forefront, as well, with alt-right, white nationalist, and neo-Nazi groups organizing “free speech” rallies around the country.
“Free speech is not absolute; that has been true from the very beginning,” emeritus professor at Berkeley Law and First Amendment expert Jesse H. Choper told us. But where one draws that line is something that does not have a clear answer. He told us that there is a real lack of definition about “what is hate speech and under what circumstances does it lose First Amendment protection.”
The one key place that hate speech may lose First Amendment protection, and the main line being drawn by the ACLU’s combined statements, is speech which plausibly incites violence. Schenck v. United States, a 1919 Supreme Court decision made famous by Justice Oliver Wendell Holmes’ statement that the First Amendment “would not protect a man in falsely shouting fire in a theatre and causing a panic”, is the first to formalize the concept of speech that “creates a clear and present danger”. In that case, Holmes argued:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
A 1969 Supreme Court decision (Brandenburg v. Ohio) which reversed the conviction of a Ku Klux Klan group previously charged with inciting violence through speech, however, served to narrow what constitutes a “clear and present danger” resulting from words. The case in essence replaced the previous “clear and present danger” standard with what is termed the risk of “imminent lawless action”, a standard still applied to First Amendment cases today:
Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Unfortunately, there remains a lack of clarity surrounding what “imminent lawless action” constitutes. Some was provided by a 1973 Supreme Court Case, Hess V. Indiana, in which a protester at Indiana University demonstrating against the Vietnam War was arrested for disorderly conduct when he allegedly muttered “we’ll take the fucking street later” in earshot of a sheriff. The Supreme Court overturned that conviction, arguing that his words did not constitute a risk of “imminent lawless action”:
Since […] evidence showed that Hess’ statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had “a `tendency to lead to violence.’
In this sense, the test of a limit on free speech in America derives not from its content, but from its intent and probable outcome (for example, if the speech is explicitly inciting ‘imminent” lawless action or is likely to do so). Such a test still comes with plenty of wiggle room.
This is why, on a page about free speech on America’s campuses (as well as in their statements regarding hate speech), the ACLU advocates case-by-case reviews:
To be clear, the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis.
Despite the events in Charlottesville, the ACLU’s position on First Amendment protection has remained consistent, their director argued on 14 August:
Some have argued that we should not be putting resources toward anything that could benefit the voices of white supremacy. But we cannot stand by silently as the government repudiates the principles we have fought for — and won — in the courts when it violates clearly established First Amendment rights.
Invoking the threat of violence cannot serve as the government’s carte blanche to shut down protests. If that were the case, governments would almost always be able to shut down protests, even when the protesters themselves are peaceful, because others could exercise a heckler’s veto through violence or the threat of violence. We must not give government officials a free pass to cite public safety as a reason to stifle protest.
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