Here's Why White Supremacists Have Free Speech Rights Too

August 17th 2017

Danielle DeCourcey

Though the dust is still settling from the white nationalist rally in Charlottesville,Virginia last weekend, which resulted in the death of 32-year-old counter-protester Heather Heyer, two state troopers, and dozens of injuries, alt-right organizers are already planning other rallies across the nation.

Memorial for Heather Heyer who was killed when a car rammed into the crowd.

According to CNN, there are at least nine far-right rallies planned for this upcoming weekend. These protests will be focused on Google campuses, in response to the firing of Google employee James Damore, who wrote a controversial 3,000 word memo criticizing the tech giant's diversity policies. 

In addition to a planned Google demonstration, Boston will see an additional rally on Saturday, organized by the alt-right group Boston Free Speech. The group's organizer, John Medlar, told Boston.com in an email that his event is not associated with the white supremacists who were in Charlottesville. “We are a grassroots coalition of local progressives, libertarians, and conservatives...,” Medlar wrote. "The topic of our event is free speech itself, and issues related to free speech. [Every] speaker at this event was invited to speak about issues related to free speech, not their other personal politics.”

"On Saturday, August 12, 2017, a veritable who's who of white supremacist groups clashed with hundreds of counter-protesters during the 'Unite The Right' rally in Charlottesville, Va."

The Anti-Defamation League wrote a post Monday that said the free speech rally organizers and participants would likely reject the term "white supremacists," but that they "are in step with the alt right in their hatred of feminists and immigrants, among others," and "virulently anti-Muslim." One of the planned speakers for the event, Augustus Invictus, was also a planned speaker at the Charlottesville rally. 

Given how the Charlottesville rally unfolded, some of these scheduled alt-right rallies are facing opposition. Texas A&M University canceled a white nationalist rally slated for September because of safety concerns, according to USA Today. Plans for an upcoming rally in Lexington, Kentucky, to protest the removal of two Confederate statues from the Fayette County courthouse, has been met with condemnation from Senate Majority Leader Mitch McConnell and promises of an increased police presence from Lexington police chief Mark Barnard. And as the Boston Herald reported, Boston's Mayor Marty Walsh spoke in no uncertain terms about his feelings regarding the upcoming free speech rally

“I don’t want them here, we don’t need them here, there’s no reason to be here,” Walsh said.

Boston Mayor Marty Walsh

Can government officials actually stop events that they expect will promote white supremacy? 

ATTN: talked to Eugene Volokh, a law professor at the University of California, Los Angeles, who specializes in free speech and First Amendment rights. 

ATTN: Does the First Amendment protect all kinds of protests and rallies? Are there exceptions?

Volokh: Well, if the question is: "[does] it protect rallies without regard for the views that are expressed there?" Then yes, it does. The protests could condemn Jews, communists, whites anyone. However, you can't make true threats of violence. You can't say, "I'm going to kill a specific person, or I'm going to kill you, protestor lady." You can't suppress a rally because you think people might say such things. What you need to do, is see if they do or say such things, and if they do, you can punish them. You can even tell them that up front. Likewise, there's a very narrow exception for incitement. That's speech that is intended to or likely to cause imminent illegal conduct right away. If someone is protesting outside and says, "Comrades lets go and beat up these white supremacists" that may be punishable as incitement of imminent criminal conduct. If police hear that, they can arrest a person, but they can't say, "Oh, we think you might say that so we're going to forbid you from having the rally at all."

ATTN: There is an argument that because of the deaths in Charlottesville, and the Nazi and white supremacist presence there, that there is a higher likelihood of violence at the upcoming rallies. Does that factor in? 

Volokh: There are some people who argue that there should be an exception for white supremacists but the courts are very clear on this. The Brandenburg v. Ohio case, which set forth the imminent component, was about a Ku Klux Klan rally. Also, there's Forsyth vs. The Nationalist Movement. 

[Note: In the 1969 U.S. Supreme Court Case Brandenburg v. Ohio, the court ruled that the arrest of a KKK member for speaking at a rally was unconstitutional because his speech did not lead to "imminent lawless action," according to the American Civil Liberties Union. In Forsyth vs. The Nationalist Movement, the U.S. Supreme Court limited the power of the government to impose fines and fees on private groups using public spaces.]

There is no exception to free speech at these rallies. Any speech that falls under exceptions are either true threats or incitement. Of course, there's [a chance] someone could be killed, just like there are some police officers who were killed right after Black Lives Matter events. Just as we know sometimes there's violence at the picket line. A lot of political movements are mostly peaceful and sometimes have a violent fringe. It's true of the anti-war movement and the Civil Rights Movement. It is a basis for making sure the police are there and making sure that any violence is stopped. In Charlottesville, my understanding is that the police just stood there for a while, and maybe that's not true, but that shouldn't be. If the mayor wants to prevent violence, there should be a strong police presence. 

"City Councilwoman Helen Gym, left, marches with protesters as they demonstrate in response to a white nationalist rally held in Charlottesville, Va., over the weekend, in Philadelphia."

ATTN: I think the average person has a limited understanding of free speech and First Amendment rights, and it could be emotionally confusing when we're talking about the protected speech rights of possible hate groups. Why is it important to protect everyone's right to free speech?

Volokh: The Supreme Court has decided that the government can't handpick and choose what speech is so bad — in its view — that it should be suppressed. We experimented with doing that with anti-war protesters and when the government was trying to suppress communist speech, and then ended up suppressing all kinds of other speech. Back before we had strong Supreme Court protection, one of the forms of speech that was most adamantly suppressed was abolition speech to free the slaves. They said it was potentially productive of violence and war and it was illegal in the South. 

ATTN: There is a lot of discussion right now about what kinds of domestic groups should be labeled terrorists. Does that label change anything about free speech rights? 

Volokh: Labeling someone as a terrorist doesn't strip them of their rights either. Engaging and physically attacking people is illegal. There is a crime of terroristic threats, but you can't suppress someone saying, "ISIS a wonderful thing." People are free to teach extremist versions of Islam and other religions, even if that's something terrorists endorse. To give another example, there is animal rights terrorism, there is abortion terrorism, there is eco rights terrorism. When you commit violence or when you commit a true threat to a particular person —  not just hyperbole but "I will kill you" instead of "I will kill the capitalist oppressor"— or there is incitement of immediate criminal conduct by urging someone to do something right now, then it is punishable. 

ATTN: Can you explain the difference between a true threat and hyperbole? 

Volokh: I'll give a classic example from 1969. A guy named Watts was protesting against the war and somebody said, "Instead of protesting, you should be getting an education." He said, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J." and they prosecuted him for threatening the life of the president. The Supreme Court said that, in context, that isn't actually a threat that he will kill LBJ. In context, it's just kind of a militant, impassioned way of expressing a message. The line is not always completely clear. 

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