After the events in Charlottesville, debate has broken out about first amendment rights and fascist, alt-right, neo-Nazi, the KKK, and other white supremacist organizations’ rights to assemble, march, and spread their message.
The First Amendment ensures that the government shall make no law that abridges the freedom of speech. This does not mean that everyone is entitled to say whatever they want all of the time; it simply states that the government shall make no law limiting free speech – but there are different classifications of speech found by the Supreme Court, the judicial body that interprets the constitution and its amendments. Not all speech falls under the purview of “free.”
This amendment also grants people the right to assemble, but it’s important to note that the right specifically states that the government shall make no law that denies the right of people to peaceably assemble. When one sees a race of people, a religion of people, a gender of people as inferior, they won’t treat them like people in the streets when confronted.
The Supreme Court has historically struggled to align people’s right to exercise free speech with these broader constitutional goals. When it comes to statements that lead to violence, false statements of fact, obscenities, and statements that invoke a fight, speech is not protected because of the following precedents set by The Supreme Court:
In Brandenburg v. Ohio, the Supreme Court established that the advocacy of immediate violence (this was added in Schenck v. United States) is not protected speech. The speech must represent a “clear and present danger” to someone in order for the speech to be held as non-protected speech. In this case, the court ruled in favor of a Nazi march stating they didn’t present a clear or present danger; although, the violence at the hands of right-wing nationalists might change the interpretation of what constitutes “clear and present danger” in the future.
In Gertz v. Robert Welch, Inc., the court ruled that false statements of fact are not protected speech. This would include much of what Trump Tweets in addition to his latest claim that the “alt-left” is just as violent as the alt-right. The “Unite the Right” rally’s slogans would also fail to pass the scrutiny of protected speech in this instance.
In Miller v. Colorado, obscenity was found to not be protected speech, but the standard varies from community to community on what the definition of obscenity is. Later cases like Smith v. California implemented an ignorance clause so if you didn’t know the material was offensive, you can’t be charged with it being obscene. Racist chants are, at their very core, not protected speech due to their inherently obscene nature.
In Chaplinsky v. New Hampshire, “Fight Words” and “Offensive Speech” were both found not to be protected speech. This includes speech that “tend[s] to incite an immediate breach of the peace” by provoking a fight and “personally abusive [words] which, when addressed to the ordinary citizen is, as a matter of common knowledge, inherently likely to provoke a violent reaction” and the speech must be “directed to the person of the hearer.” While there is an exception for satire, I don’t think we can call the alt-rights chants of “the Jews will not replace us” satire.
There are other exceptions for speech owned by others (such as plagiarism, trademarks, copyrights, etc.), pornography, and there might be an upcoming one on repeatedly encouraging someone to commit suicide as other forms of non-protected speech.
Was the speech at the “Unite the Right” rally in Charlottesville protected? Hell no. Is this a matter of free speech or letting the alt-right be heard? Again, hell no. While we all have the right to free speech, not all speech is free. When speech violates the standards set forth in the cases above, speech is no longer protected speech and is therefore sanctioned to being stopped.
The actions that killed Heather D. Heyer, 32, and the violence that ensued is not the fault of the left; the actions of those gathered that day to spread hate (call them what you will: Nazis, neo-Nazis, alt-right, the KKK, Christian white disenfranchised males, fascists, neo-fascists, etc.) bear the full responsibility for the events in Charlottesville. This is truth, despite what our commander-in-racism, aka Donald Trump, says in any press conference – make no mistake about that.
I think it’s safe to say that Trump isn’t familiar with our constitutional rights and liberties, but we can be. We can know that not only were the marches and speeches made by the “Unite the Right” rally in Charlottesville not constitutionally protected in any sense, but that allowing this hate march to occur injured many and cost one woman, peacefully protesting, her life.
If liberals and centrists want to defend alt-right marches, they’re going to have to find a more convincing argument because their current one isn’t Constitutionally sound.