Unite the Right Rally, August 11, 2017 (Left) Segregation Protest outside of U.S. Steel Building, Pittsburgh, PA 1966 (Right)

This discussion is to be an examination of the relevant legal principles of Freedom of Speech, Freedom of Assembly and Freedom of Association that have been recently put on display. I will be referring to some basic prior case law and I always welcome being advised and made of aware of relevant case law and decisions that better fit a circumstance or facts.

This discussion has to begin with what it is not about. It is not about trying to justify violence. It is not about trying to justify the murder of the innocent and immensely courageous Heather Heyer. It is not about trying to downplay the assault upon 19 other brave individuals. It is not about trying to accept hate. It is not about trying to normalize Nazisim and those who support this ideology wish to bring. And it is not about supporting the President, Donald Trump, who in a craven and pathetic display of cowardice, used his position of power to attempt to justify the violence that was on display in Charlottesville.

It is about defending one of the foundations of our country. It is about defending one of the core aspects of our society that separates us from the rest of the world. I am talking about the Freedom of Speech and the First Amendment protections that are provided to every citizen by the United States Constitution.

And this must happen now. This must happen in this moment of chaos. This moment of terror. This moment of pain. Because we are at our weakest now, and it is when you are weakest that you must rise up and show your strength. We risk allowing this emotion and this pain to overcome us, and to have us cast off one of our most powerful assets as Americans and as humans.

Since the events of Charlottesville that occurred on August 12, 2017, I have heard numerous individuals make seemingly, in this moment of pain and chaos, sensible statements:

Nazis must be banned:

The Unite the Right Rally should have never been allowed to happen:

(Warning — Graphic)

Free Speech does not Protect Hate Speech:

https://www.nytimes.com/2017/08/13/us/charlottesville-protests-white-nationalists.html?mcubz=3

On their face these statements seem reasonable. They are understandable. A woman has died and multiple people have been injured.

The violence that occurred on August 12, 2017, must be separated from the speech that was protected under the First Amendment. Despite their horrid ideals. Despite their despicable desires. Despite the violence that occurred, the First Amendment allows for the most repugnant of ideas and concepts to be spoken.

The case law the forms the backing of the First Amendment holds as such.

Brandenburg v. Ohio, 395 U.S. 444 (U.S. 1969):

In 1964 the Klu Klux Klan was holding a rally, where Klan member Clarence Brandenburg stated the following: (Warning — Graphic)

How far is the nigger going to — yeah. This is what we are going to do to the niggers. A dirty nigger. Send the Jews back to Israel. Let’s give them back to the dark garden. Save America. Let’s go back to constitutional betterment. Bury the niggers. We intend to do our part. Give us our state rights. Freedom for the whites. Nigger will have to fight for every inch he gets from now on.

Clarence Brandenburg was arrested, charged under an Ohio law that stated “ “advocat[ing]…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism”.”

The Supreme Court found this law unconstitutional, and Clarence Brandenburg’s speech protected. “ Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.[n4] Such a statute falls within the condemnation of the First and Fourteenth Amendments.”

The Supreme Court established a new test to determine when speech can be limited due to its content. “ 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.”

Snyder v. Phelps, 562 U.S. 443, U.S. 2011:

In 2011 the Westboro Baptist Church protested the funeral of Matthew Snyder, a U.S. Marine who was killed in the Iraq War. Their signs contained phrases such as “You’re going to hell”, “God hates you”, “Fag troops”, “Semper fi fags” and “Thank god for dead soldiers. The father of Matthew Snyder, was Albert Snyder, a gay man.

Despite the entirely outrageous, offensive and denigrating language that the protesters used and the effects it had on Mr. Snyder, the court found in favor of the protesters. Despite this undoubtedly foul language, and the manner in which it was employed, it was protected under the First Amendment.

But why. Why defend the most repugnant of speech? Why defend the right for the loathsome and hateful to gather? Why defend the offensive? The vile? The evil? Because as we defend that which many in society view as having no value, we better situated ourselves to defend that which is right. When the zeitgeist of the times is wrong, but those who are fighting against the tide are right. The First Amendment and the tool it provides to those who are fighting for the right is not one we should easily remove or weaken.

National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (U.S. 1958) upheld the right of civil rights organization such as the NAACP to gather and organize in the state of Alabama.

Edwards v. South Carolina, 372 U.S. 229 (U.S. 1962) upheld the right of protestors to legally march and protest the infringement of civil rights that African-Americans were suffering.

Cox v. Louisiana, 372 U.S. 536 (U.S. 1965) upheld the right of civil rights protesters to engage in peaceful demonstrations, even though the demonstrations may potential incite violence.

New York Times Company v. Sullivan, 376 U.S. 254 (U.S. 1964) upheld the right of a newspaper, and the freedom of the press, to publish a civil rights ad that condemned the abuse of power being levied against the movement.

Perhaps best highlighting how the defense of the indefensible provides for the defense of the right and vulnerable is the National Association for the Advancement of Colored People v. Caliborne Hardware, 458 U.S. 886 (U.S. 1982) The court upheld the right of Civil Rights advocate Charles Evers to deliver a emotionally charged and incendiary speech that was in support of a boycott against racist merchants and businesses. One of the cases the court cited for their decision? Brandenburg v. Ohio. In a beautiful display of the power of the First Amendment, the court defended the right of a black civil rights advocate, with a case that defended the right a KKK member.

We can never know what the future will hold. We can never know what minority will need to fight for its right. What rightful cause will need to be championed against resistance. What idea that the zeitgeist will resist but will ultimately be found to be right and proper. To prepare for that future we must guard against the undermining of our rights today.

If you chip away at the First Amendment today, you leave the weak and vulnerable of the future without the tools and backing that they so desperately need.