John Culhane is H. Albert Young Fellow in constitutional law and co-director of the Family Health Law & Policy Institute at Delaware Law School (Widener University). He recently visited Cuba with his colleagues as part of a course exploring the economic and political situation there.

Of the many disturbing questions posed by the violence in Charlottesville, one stands out: Should protesters be allowed to have guns? Even the ACLU, known for defending the right of free speech in unyielding terms, has announced that it will no longer represent hate groups that seek to march while armed.

“If a protest group insists, ‘No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them. They can find someone else,” the civil liberties group’s president, Anthony Romero, told the Wall Street Journal.


The question is also posing dilemmas for mayors and university presidents, who fear the violence will come to their towns and schools. In Charlottesville, it was a weaponized car that killed Heather Heyer; could bullets be next? Their best option may be to ban the carrying of guns to these events, but their legal position is tenuous. In many states, they’ll need to convince a court that it’s only by banning weapons that the First Amendment rights of all demonstrators can be honored.

Many officials would like to avoid the gun issue by simply stopping the white supremacists from showing up at all. That’s what Texas A&M University and the University of Florida have done. "Alt-right" leader Richard Spencer was recently disinvited from a planned speech at Florida; he plans to sue. Preston Wiginton, a former Texas A&M student whose planned speech was advertised with the incendiary slogan: “Today Charlottesville, tomorrow Texas A&M!”, has similarly been told to get lost. He may also challenge the decision in court.

If the bans are indeed challenged, the schools could well lose. The Supreme Court has made it clear that, no matter how vile or offensive the message a speaker is conveying, the government can’t ban it. Otherwise the First Amendment is useless in cases where it’s the most needed: to protect unpopular ideas. Since both schools are public universities, their actions are clearly government actions, and they’ll have a heavy burden to overcome.

There are a few arguments they can try. Texas A&M has a policy that speakers are welcome only if they are invited by one of the many student organizations on campus. On the face of it, that policy makes sense: Universities serve the students, so if no student group wants you, too bad. A court could decide, though, that the policy was put into place only for the purpose of preventing white supremacists from speaking. If the policy is seen as a subterfuge, A&M’s argument won’t have much traction; the university will then be seen as discriminating against the speaker because of the content of his speech, which is a big First Amendment no-no. That’s a strong argument in this case, since the policy was put into place only after Wiginton’s speech last December sparked protests.

The universities can also raise safety concerns. That’s what Florida President W. Kent Fuchs pointed to in canceling Spencer’s speech: “The likelihood of violence and potential injury—not the words or ideas—has caused us to take this action.” But that’s also a problematic argument. Given the events in Charlottesville and clashes at other white supremacist events, violence is surely a legitimate concern. But the Supreme Court has made clear that local authorities have to at least try using security measures to stem the violence, and can’t simply decide in advance that the possibility of conflict is too great. Again, there’s a danger of too-easily banning speech, using a pretext.

Of course, Florida, Texas A&M, and other universities faced with similar requests by racist groups to speak on campus may be trying to buy themselves some time for the situation to cool off. But if the court challenges are quickly resolved, even that might not work.

The fear of violence is legitimate, though. What can universities, and towns, do to protect their citizens? After all, the protection of public health and safety is the paramount job of government—greater even than the sturdy commands of the First Amendment, because safety and security are necessary conditions for free expression. The challenge for mayors, university officials, and others is to find some way to lower the risk of tragic injuries and death—a risk that Charlottesville made awfully clear.

What many of these officials would like to do is to remove the guns from the equation. Recall that much of the violence against the counter-protesters in Charlottesville went unchecked by police, who did a better job tending to the victims after attacks than in stepping in to stop the violence in the first place. According to Virginia Governor Terry McAuliffe, that was because the police were “outgunned” by militia members “who had better equipment than our police had. ... You would have thought they were an army.”

Some states don’t allow people to bear arms in public. But in states with laws that allow people to carry firearms—even semi-automatic weapons—openly, is there anything that can be done about it? It seems the two rights are linked: The First Amendment’s guarantee of free speech, and the Second Amendment’s right to bear arms. But it’s not that simple.

First, although the Supreme Court held in 2008 that the Second Amendment confers a right to bear arms, the court has never defined the scope of that right, and, in the very case establishing the right, the majority opined that “nothing in our opinion should be taken to cast doubt on … laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” A law prohibiting the carrying of guns at publicly sanctioned demonstrations would very likely be held constitutional, given the balance of interests in that specific context. State legislators, and perhaps even Congress, should get busy writing such exceptions into the law where they don’t already exist.

Can anything be done in states that currently allow open carry? It’s a tougher argument to make, but not impossible. A judge could find that, in the specific setting of political demonstrations, carrying arms is so intimidating that it has the effect of chilling the free expression of those on the other side. In other words, it’s not just the white supremacists who have the right to free speech—all the demonstrators enjoy, or are supposed to enjoy, that same freedom.

We don’t even have to speculate about the in terrorem effect of heavy weaponry. In 2013, a small group of women who’d formed a gun-control group in the wake of the Sandy Hook massacre found themselves trapped in a Dallas restaurant by a group of 40 gun-wielding counter-protesters who stood outside with guns for some two hours. (They eventually decamped to a nearby Hooters.) It’s reasonable to assume that some folks who oppose the white supremacists fear showing up at a demonstration where the other side is heavily armed. Or, if they do show up, they might be less than full-throated in their denunciations of the other side.

The white supremacists have free speech rights, too, though. In the Texas case, the gun-wielders were trying to make the point that guns are normal and safe. And it’s received First Amendment doctrine that expressive conduct can be speech. For example, the Supreme Court has been clear that laws criminalizing burning the American flag are unconstitutional. But the key question in expressive speech cases is whether the law is targeting the underlying message, or has an independent—“content-neutral,” in the court’s parlance—purpose. In that case, even if the expressive conduct does have a speech component, it can be regulated for a good reason.

In one 1984 case, the court held that a National Park Service regulation that prohibited camping in certain parks didn’t infringe the rights of demonstrators who chose to demonstrate the plight of the homeless by sleeping on the National Mall. The court found that the rules were aimed at “maintaining the parks in the heart of our capital in an attractive and intact condition,” not at squelching the demonstrators’ message. More dramatically: Shooting a doctor who performs abortions is one way of communicating a message about a vital public subject, but laws criminalizing murder don’t care what message underlies that conduct. Safety and public order come first.

When white supremacists carry guns to their demonstrations, it’s not even clear what “expressive” message they’re trying to convey. But whatever they might be saying with their guns, cities, towns and universities have the right—the responsibility—to protect all citizens, and the First Amendment rights of all. In this way, public safety and the First Amendment are powerfully linked. Those vital interests should be enough to justify a ban on openly carrying weapons during these demonstrations, especially since we now know that the conduct can chill not only the counter-demonstrators, but even the police. If they’re afraid to do their jobs, the First Amendment is indeed a hollow guarantee.