The Tully Center for Free Speech

Free Speech Zone

When free speech devolves into violence

By Roy Gutterman, August 17, 2017

This article appeared on Syracuse.com on August 17, 2017.

Discussions of free speech and First Amendment issues sometimes involve abstract language and concepts. One of the most common questions is: Where do you draw the line between free speech and censorship, suppression or punishment? In Charlottesville, Virginia, that line was smashed.

What started as a seemingly lawful, yet emotional and heated, protest exploded into a full-blown riot with chaos, three deaths and neo-Nazis, KKK and other white supremacists clad in helmets, brandishing shields and weapons.

First Amendment rights to speak, assemble and petition the government for redress of grievances are fundamental, but not absolute. Showing up to a protest with armor and weapons crosses the line and the rioting loses its constitutional protection.

Political protests and demonstrations are rife with passion, emotion and potential for combustion. But they serve a vital and historic role in our democracy, even when the parties demonstrating are the ones many of us do not want to hear or the speakers carry hateful or ugly messages or viewpoints. Nevertheless, these speakers and their political viewpoints are entitled to First Amendment protections. Just to be clear, this is not an endorsement for the alt-right, KKK or Nazis. There is no question these are hate groups that fall outside the mainstream. They harbor offensive and hateful views, and should be condemned by society and leaders.

Last week’s riot shows the hazards of balancing rights and the perils of what can go wrong when protesters clash. These types of hot-button clashes touch on First Amendment challenges, including fighting words and hate speech.

These protests also highlight an important First Amendment concept known as the “safety valve” theory. Espoused by a constitutional scholar in the 1970s, and subsequently embraced and criticized for being both potentially effective and ineffective, the theory posits that if speakers – especially fringe or offensive speakers – are suppressed, they will simmer and eventually boil over and explode, destabilizing society and government. Thus, society will let speakers, even those with ugly, unpopular or infuriating viewpoints, vent.

In 1927, Justice Louis Brandeis first articulated this theory in his oft-cited concurring opinion in Whitney v. California. In this case, the Supreme Court upheld the criminal syndicalism conviction of Charlotte Anita Whitney, a member of the California Communist Labor Party, which was considered a group intent on the violent overthrow of the government and thus illegal. For decades during the Red Scares and other crises, members of these groups found themselves fighting their criminal convictions on constitutional and First Amendment grounds.

While declaring the rights of free speech and assembly fundamental, Brandeis also noted the potential for limitations, primarily the incitement of violence or “substantive evil.” He also acknowledged the potentially vague and subjective standards that would justify suppression, censorship or punishment for speech that crosses the line into something illegal.

The founders of the country who drafted the First Amendment, Brandeis wrote, “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”

Another case testing our resolve to uphold First Amendment rights, which has parallels to the Charlottesville riot, also involved Nazis.

In the 1970s, Nazis wanted to march through Skokie, Illinois, a predominantly Jewish suburb with a large population of Holocaust survivors. After the Nazis’ challenge reached the U.S. Supreme Court, with legal counsel from the American Civil Liberties Union, the Illinois high court held that even as offensive as the march and display of the swastika was, the Nazis had a First Amendment right to assemble and speak.

The Illinois court, which had the final word on the dispute, wrote, “We accordingly, albeit reluctantly, conclude that the display of the swastika cannot be enjoined under the fighting words exception to free speech, nor can anticipation of a hostile audience justify the prior restraint.”

There are no easy answers with these types of speech clashes. Censorship is not the answer. Removing platforms such as web-hosting or denying permits for protests will not remove the hate groups or make everyone suddenly come together. Pushing the groups back underground is not the answer, but legitimizing them may be even more dangerous.

Another of Justice Brandeis‘s prolific pronouncements applies here: Sunlight is the best disinfectant. Exposing hate groups and their members to public scrutiny, and real condemnation, is also an important function of free speech and free press. Perhaps First Amendment rights and values will protect us after all. But the discussion will not be easy or pleasant.