Thinking Constitutionally About Charlottesville

Whenever the government gains the power to ban one speaker, it also acquires the power to ban other speakers.
08/22/2017 05:46 pm ET
Jonathan Ernst / Reuters

Prior to the events in Charlottesville last week, the ACLU of Virginia went into court to secure the rights of all demonstrators to express themselves at their chosen site.  This action was traditionally what the ACLU does, and has always done, since its founding in 1920.

Protecting the right of expression against government restrictions is and has always been one of the ACLU’s primary missions, and it is pretty much the only national organization that does that.  Many groups and individuals champion their own right to express themselves, but they do not fight for the same right for people or groups whose views they disagree with, or despise.

But as a practical matter, there is no way to protect your own speech from government restrictions without protecting everyone’s speech.  That’s because once the government has the power to decide which speech to permit, and which to allow, none of us can control how that decision will be made., or who will make it.

And subjugated groups are most at risk when the government is allowed to decide who can speak, and who can’t.

Thus when the ACLU defends the right of anyone to speak, it is in fact defending the right of everyone. The immediate beneficiary of a particular free speech case is not what matters; what matters is preventing the government from acquiring the power to pick and choose which speech to allow and which to ban.

Because once the government acquires that power, none of us can control how or against whom it will be used. The first target of government speech bans is never the last. For this reason, any target of a government speech ban must be defended, and the ban resisted.

This means that periodically the ACLU is in the position of defending the right of free speech for everyone by defending it for people holding views that most Americans find reprehensible. And this causes great confusion and consternation, because it is not intuitive to think that your own rights are being protected when you defend those of your enemy. This has happened throughout the ACLU’s nearly hundred years, and now, as the result of the Charlottesville case, it is happening again.

Just last week, that confusion was reflected in an op-ed in the New York Timeswhich argued that the ACLU should stop defending the free speech rights of racists. The writer asserted that those who defend free speech rights of speakers regardless of their views do so out of “a misguided theory that all radical views are equal.”

Not true. That is not the reason. The reason the ACLU defends all speakers is because whenever the government gains the power to ban one speaker, it also acquires the power to ban other speakers. And that power will not usually be exercised by people like the author of the op-ed, but inevitably and primarily by people like Joe McCarthy, Rudy Guiliani, Richard Nixon and, yes, Donald Trump.

Speech restrictions are like poison gas; they seem like a swell idea when you’ve got your enemy in your sights, and imagine yourself with the power.  But political winds have a way of shifting, blowing the poison gas back in your direction.  Examples are legion:

In England, Jewish students who supported a ban on racist speech were surprised when Zionist speech was banned after those in power decided Zionism was a form of racism.

And here in the U.S., many black students, oppressed by racism, supported speech codes on their college campuses that banned hate speech. They imagined they would be the ones deciding whom to ban. They imagined such bans would keep David Duke away. But if hate speech codes had been in effect on college campuses in the 1960s, Malcolm X and Eldridge Cleaver would have been their most frequent target.

When you give government the power to ban hateful speech, the only thing that matters is who gets to decide. And it will not usually be advocates for equality, or the victims of inequality.

Imagine whose speech would have been banned in Charlottesville if it were up to President Trump. That is why the First Amendment denies the government such power. And why every government attempt to gain such power must be resisted, no matter the immediate beneficiary.

But what about violence? What about the fear of violence? What about carrying guns to a demonstration? Many people, contemplating these questions, are feeling that in Charlottesville, certain speech restrictions were necessary and reasonable, and would not threaten basic free speech rights if allowed. There are two Supreme Court cases that address these questions.

The first is Brandenburg v. Ohio, a 1969 case involving a Ku Klux Klan speaker, in which the Court ruled that criminal violence was of course not protected by the First Amendment and imminent violence could be curbed as well, before it happened, but that the fear of violence, without more, cannot be used as a justification to ban speech and expression. Examples:

Violence: Throwing a bomb through the window of an abortion clinic certainly expresses an opinion, but is not protected by the First Amendment. No brainer.

Imminent violence: A lynch mob marching toward a jail, torches and noose in hand, chanting, to seize a suspect, is certainly expressing an opinion, but the march can be curbed before it reaches the suspect without violating the First Amendment.

Fear of violence: Anti-war protesters marching peacefully, if provocatively, through a city street have a First Amendment right to do so, and cannot be curbed because of a fear that others offended by their speech might attack them or because of a fear that counter-demonstrators will lead to violence between the two groups. That fear cannot constitutionally justify a government ban of the demonstration.

Instead, it is the responsibility of the police to protect the demonstrators against violence, not use the fear of violence to ban the demonstration.

And if there is a likelihood of violence between demonstrators and counterdemonstrators, the police must take reasonable steps toward keeping them apart. As the noted civil rights lawyer Norman Siegel, himself a veteran of many such cases, recently wrote:

“To prevent violence, local and state police, and if necessary, the National Guard, need to be trained to separate hostile groups.” If need be, “you separate them with police officers standing between them or creating First Amendment zones (with wooden or metal barriers if necessary) for each group.”

But in Charlottesville, he concluded, “video footage and reported personal observations reveal that the lesson of separation was not adhered to adequately.”

In the Declaration of Independence, the founders of this country announced a then-new purpose of government: to protect the rights of citizens. “To secure these rights,” the Declaration said, is the reason why “governments are instituted...” In Charlottesville, the government failed to secure those rights. 

In Charlottesville, however, there was one more highly volatile circumstance: one side in the dispute was ostentatiously armed, carrying dangerous and intimidating weapons. Should that make a difference in how and whether free speech rights are protected?

In a curious step-back from its traditional defense of free speech rights, the ACLU national office has now announced that it may no longer defend the free speech rights of people who carry guns to a demonstration. This is a curious announcement, in part because there is no pending request for such representation, and in part because the death and injuries in Charlottesville were caused not by a gun being fired but by an automobile driven murderously into the crowd of anti-racist demonstrators. And this murderous act was likely enabled in part by the failure of the police to create barriers. Will the ACLU now not defend the free speech rights of people who drive their cars to demonstrations? Or take steps to require the police to be more protective in volatile situations?

But more importantly, the ACLU’s announcement is a serious step-back from the Brandenburg standard, which for nearly a half-century has delivered precisely the sort of free-speech protection the ACLU has sought for its entire history. Are we now to go back to fear of violence as a legitimate justification for allowing the government to prohibit speech it doesn’t like?

Because guns are not the only source of violence, and once fear of guns can justify speech restrictions, what other fears will? Fear of cars? Fear of clubs? Fear of knives? Fear of fists? Has the ACLU Board changed its longstanding policy, or was this an impromptu reaction by the staff unable to resist the hostility its free speech cases often provoke? (And maybe concerned about losing donors.)

Moreover, carrying guns as a show of force, is not unprecedented. The Black Panthers did it in the ’60s, without the ACLU as I recall ever issuing a pre-emptive statement saying it would never represent them on First Amendment grounds if they carried guns. Carrying guns is threatening, but carrying guns does not necessarily imply using them. Again, the weapon of death in Charlottesville turned out to be a car, not a gun. And people who did not drive that car, regardless of what they carried, cannot be judged to have been responsible for that death.

What can be, and should be, constitutionally curbed is imminent violence, not the fear of violence that leaves the government free to speculate.  Which brings us to the second Supreme Court case worth thinking about in this context, a case called Heller, decided in 2008.

Until the Heller decision, the Second Amendment had always been held not to confer an individual right but rather to protect the right of states to raise and maintain state militias as a protection against federal government oppression. Individuals had constitutional rights to own and possess “arms” only in that context. That is in my view unquestionably right historically. But in 2008, in Heller, Justice Antonin Scalia, the oracle of original intent, abandoned and twisted it to lead the Court to a 5-4 decision, which held for the first time that the Second Amendment conferred a right to bear arms upon individuals, even if not affiliated with any state-regulated militia.

And although the case only ruled that there was a constitutional right  of individuals to keep handguns and other firearms for private use in their own homes, the Heller decision has encouraged the spread of open carry outside the home.

I believe Heller has no more validity than the Dred Scott decision, which denied all rights to blacks, did in 1857, or the Bradwell decision, which denied the rights of women to practice law, did in 1873.  But we are stuck with it for now as those alive in 1857 and 1873 were for a time stuck with the Dred Scott and Bradwell decisions.  But that doesn’t mean we have to agree with Heller, nor does it necessarily mean that a law reasonably regulating open carry would not be upheld by the Supreme Court, even under Heller.

So to summarize: 

1. I do not recall the ACLU, back in the ’60s, taking the position that the mere brandishing of guns by Black Panthers, without more, disqualified them from being represented by the ACLU in otherwise legitimate free speech cases.  So why now, other than different political sympathies?  What’s the content-neutral legal principle here?

2. Violence can obviously be curbed. No-brainer.  So can imminent violence under the Supreme Court’s Brandenburg decision.  But just brandishing weapons, without more, is not violence any more than hanging someone in effigy is a real hanging.  I believe open carry can and should be legally restrained, and not only in the context of First Amendment activity.  But once courts allow the fear of violence, without more, to curb expression, it is a very slippery slope.

In 1969, Quaker students in Iowa were prevented from wearing black armbands to protest the war in Vietnam because school principals believed they would provoke or lead to violence. That was upheld until the Supreme Court struck it down, ruling that fear of violence, without more, was not enough. I know armbands are not guns, but fear of violence is not violence, either.

3. As Norman Siegel wrote, it is always the responsibility of the government, utilizing local police or the national guard, to protect peaceful protesters when they are threatened by thugs, whether the thugs have guns or not.  That was what the government should have done when the Freedom Riders protesting segregated busing were assaulted by white mobs in the South in 1961, and when civil rights activists marching across the Selma bridge in 1965  

were assaulted instead of protected by law enforcement officials, and when anti-war demonstrators were assaulted by hard-hats in NYC in 1970, while the police stood aside.

“To secure these rights,” the Declaration of Independence announced, is why “governments are instituted.”  If that is to be taken seriously, then the police must be obligated to protect demonstrators, not repress them, especially in volatile situations.

4. And finally: What happened in Charlottesville was not the fault of protesters who did not engage in violence. It was the fault of those who became violent, and the fault of the government that did not adequately prepare for and protect against that possibility.

Let us not allow constitutional standards we fought to establish for so long, and which protect all of our rights to free speech, become an unintended casualty of what happened in Charlottesville. Because the erosion of free speech rights would be a victory for those who oppose liberty and equality.

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