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Does the First Amendment Protect Charlottesville Protesters?

by Countable | 8.18.17

In the wake of the fatal Charlottesville, VA rally - where clashes between racist protestors and those opposing them left one dead - questions have arisen about what kinds of speech should be protected.

First, let’s have a quick refresher about which speech the First Amendment protects.

WHAT THE FIRST AMENDMENT PROTECTS

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." “Congress” also refers to state and local officials--meaning the government cannot prohibit a person’s free speech. Non-government entities, like private employers, can prohibit certain types of speech.

WHAT THE FIRST AMENDMENT DOESN’T PROTECT

Not all speech is protected by the First Amendment. Some of this speech includes:

  • Obscenity - many forms of obscenity are protected and, as the legal resources site HG.org explains, "there is a high threshold that must be met in order for obscenity not to be protected." This includes material that is “patently offensive based on contemporary community standards” and material that lacks any serious literary, scientific or artistic value. Child pornography is also not protected.

  • Libel and Slander - Individuals are not protected from legal repercussions if they defame another person through written (libel) or verbal (slander) communication.

  • Crimes Involving Speech - perjury, extortion and harassment aren’t protected by the First Amendment.

  • Conduct Regulations - the government can prohibit demonstrations or rallies at certain locations, sound levels and poster sizes. The regulations cannot be directed only at certain ideas.

  • Threats - Speech isn’t protected when it targets someone with bodily harm or death.

  • "Fighting Words" - The Court defines fighting words as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." This includes language intended to incite violence or to encourage an audience to commit illegal acts.

When it comes to Charlottesville, and when "hate speech" - which is protected - becomes something more, the last three bullet-points are usually brought up.

WHAT IS "HATE SPEECH"?

As Judge Andrew Napolitano explained in an op-ed on Fox.com: In 1969, Clarence Brandenburg, a KKK leader in Ohio, verbally attacked African Americans and Jews during a public rally. He urged his followers to travel to D.C. and practice violence against them. Brandenburg, Napolitano wrote, "was prosecuted and convicted under an Ohio law that largely prohibited the public expression of hatred as a means to overthrow the government." The Supreme Court overturned the ruling saying, as Napolitano explained, “that the whole purpose of the First Amendment is to protect the speech we hate and fear.”

"All innocuous speech, the court ruled, is absolutely protected, and all speech is innocuous when there is time for more speech to challenge it," Napolitano wrote. “This rule - known as the Brandenburg doctrine - has consistently been upheld by the court since its articulation.”

Napolitano was writing in an op-ed for Fox entitled "Why hate speech is always protected." Similar sentiments appeared in op-eds in the Los Angeles Times (“Hate speech is loathsome, but trying to silence it is dangerous”), Boston Globe (“There’s no hate speech exception to the First Amendment”), and National Review (“There’s no ‘Nazi’ Exemption to the First Amendment”).

WHEN DOES "HATE SPEECH" BECOME “FIGHTING WORDS”?

To prove that speech isn’t protected by the "fighting words" doctrine of the First Amendment, an individual has to show three things: 1) the language is an insulting word or phrase. 2) It’s said face to face to someone. 3) The phrase is likely to provoke someone to retaliate.

At the Unite The Right rally, demonstrators could be heard shouting inflammatory phrases like "White Lives Matter," “You sound like a n_,” “Jews will not replace us,” and Nazi slogans “blood and soil” and “Sieg heil.”

Were these, and other phrases, "fighting words"? Or were they “hate speech,” which is protected by the First Amendment?

Because Saturday’s rally turned violent, and led to the death of one counter protester, and injuries to 19 more, there’s a debate about whether certain aspects of the Unite The Right rally are protected by the First Amendment.

Reporters from various outlets shared videos of demonstrators shouting disparaging words at specific people or groups, including "F--- you, faggots" and “Go the f--- back to Africa” and “n-----” at a black woman.

As Vox explained, "Constitutional law experts say these last two examples may not be protected forms of speech."

Caroline Mala Corbin, a constitutional law professor at the University of Miami, told the online outlet that "You could make the case that it was an insulting epithet, obviously a slur and racist comment that would provoke someone to retaliate."

WHAT CAN BE DONE? WHAT SHOULD BE DONE?

Hate speech protected by the First Amendment, and "fighting words" difficult to prove, is there any other option for trying to avoid another Charlottesville?

Countries throughout Europe have what could be described as "dangerous speech" doctrines. Germany, for instance, considers Volksverhetzung ("incitement of popular hatred") a punishable offense, making it a crime to insult, defame or slur individuals in a manner violating their human dignity. France has similar laws, including one which prohibits declarations that justify or deny crimes against humanity, like the Holocaust or other genocides.

The First Amendment already includes certains limitations to free speech. Should the U.S. adopt similar "dangerous speech" doctrines? When does free speech become “fighting words”? Could putting limitations on free speech prevent another Charlottesville? Hit the Take Action button and use your First Amendment rights to comment below.

Josh Herman

(Photo Credit: dane_mark via iStockphoto)

Countable

Written by Countable

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(469)
  • KansasTamale
    08/18/2017
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    Of Course the first amendment covers anti-protestors, and unfortunately it protects the Hate Speech of the White Supremacists also BUT IT DOES NOT COVER THE ACTS OF VIOLENCE THE HATE GROUPS HAVE BEEN/ARE COMMITTING.

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  • Andy1
    08/18/2017
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    Freedom of speech doesn't mean freedom from criticism, or freedom from counter protests. Nor does freedom of speech protect intimidation, violence, rioting, or making terroristic threats - all of which the neo-nazis in Charlottesville participated in.

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  • Be
    08/18/2017
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    "I may not agree with what you say, but I will defend, to the death, your right to say it." BUT protesting with weapons of any kind or have that speech incite violence and I say Jail them

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  • Momlyfe
    08/18/2017
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    "Blood and soil". "Jew will not replace us" if you don't get that this is inciting violence, then you are beyond help.

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  • Eva
    08/18/2017
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    Charlottesville showed that the laws surrounding guns have eliminated free speech in public places. How can anyone speak freely against white supremacy or fascism, or racism, etc., when the white supremacists, Nazis, racists, etc. are carrying military weapons capable of killing large numbers of people in the blink of an eye? Gun laws need to be changed at the federal level, so a group of thugs can't take over a town with a show of military force - a threat to kill.

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  • KenBudris
    08/18/2017
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    I think "peaceably to assemble" is the key here. I don't care if a group gets together to talk about peace, love and harmony--if they show up at a public venue with weapons, that event needs to be shut down. The first amendment does NOT guarantee the right to form an armed mob.

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  • DemocraticDebater
    08/18/2017
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    No, it does not protect them. The first amendment has been restricted with Schenck v US, which states that if there is a clear and present danger with the protests, such as an uprising or threats at other groups of people, then that speech is not protected. The speech that the Alt Right and Neo-Nazi groups were using were threatening groups of people, and thus, is not protected.

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  • Jerry
    08/18/2017
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    The first amendment protects all lawful citizen protesters until the first act of violence occurs or someone incites violence.

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  • TheHippyHippie
    08/18/2017
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    Many of the protesters were captured on camera using racial slurs and threatening violence, as well as violently beating a man and driving a vehicle into a crowd of people. NONE OF THOSE THINGS ARE OR SHOULD BE PROTECTED UNDER FREE SPEECH

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  • Kate
    08/18/2017
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    Hate speech, especially rhetoric that references genocides, racial threats or eugenic cleansing should no be protected under free speech. By allowing this to go unchallenged we accept it as valid speech, not the biased assault it is.

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  • Ken
    08/18/2017
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    Not only were the neo nazi, alt right groups not protected under the 1st amendment but Mr. Donald Trump and his incitefull words encouraging just what happened on Saturday aren't protected either. A monster has been created in making Donald Trump president. What the rest of the world must be thinking of our country makes me sad.

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  • Chuck
    08/18/2017
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    Yes. As long as they are peaceful. Once they started their typical Nazi garbage (violence) it was a crime.

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  • Deplorable
    08/18/2017
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    Countable is too far left for me. The views expressed here routinely are "its Trump it's not right". You should've spoken up during the prior administration if you so cared. I denounce what happened in Virginia. It WAS wrong on so many levels. Police inaction, neo nazi extremism, Antifa, etc. And importantly that idiotic driver that plowed into innocent lives. The First Amendment doesn't protect him. However our First Amendment right to free speech is our nations most important tool. It should be protected to its fullest. Yes, it's ugly when the kkk is able to use that protection. I understand that. But without the First Amendment we are mindless robots. Doing what we're told when we're told, God forbid we dissent if the First Amendment ever crumbles. It sure wouldn't be a very nice place to be, now would it? I wonder if those that "want all the statues down" because it reflects something they don't want to face that is a part of our Country's history, are going to remove all their Ancestors for any remote part they played in Slavery? Should we just remove all references to slavery in every classroom book? Take every book off the shelf in every library talking about George Washington? Where does it stop? I for one think the younger generation needs to have a complete history lesson. I don't think they learned a thing. Fight just to fight. Seems like a poor-at best decision to me. How about get out there and help our senior citizens, pick up some trash in your neighborhood, serve the needy in a soup kitchen, how about serving your country? Stop being "Anti-..." and started helping. It takes more muscles in your face to frown than to smile.

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  • Judith
    08/18/2017
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    The 1st Amendment protects the speaker from the government but it does not convey the right to incite hatred and violence against protected classes - aka minorities. Wandering around with weapons, a Nazi flag, throwing Nazi salutes, and chanting "blood and soil" is not protected speech. It is incitement of racial and religious hatred. It is an AGENDA not just speech. Nazis have an agenda: genocide of Jews. White Supremacists aka Vanilla Isis have an agenda: a White Only Nation. As David Duke said, they want to take America back again... sounds like sedition to me. By telling people that standing up to hate speech and seditious murderous AGENDAs is infringing on their first amendment rights, you are demonstrating that you do not really understand the 1st Amendment in practice. The Greatest Generation, those in WWI and WWII, of which 4 of my uncles fought, were standing up to genocide and hate as our country wanted bc it was the right thing to do.

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  • Rajahm
    08/18/2017
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    LMAO. It may protect ones right to free speech but it doesn't mean there are no consequences for what is said. Hate groups give up that right and should not be protected by the constitution. Less we forget that many Africans and African Americans that have died because of white supremacy and their hate speech, since . . . Well, the dawn of time!

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  • TheOppositionist
    08/18/2017
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    The wonderful thing about this country is that you can have an opinion no matter how stupid it is. It's our right, and it's important. Even hate speech should be protected. But freedom of speech doesn't equate to freedom from consequence, so yes Nazis can be fired for being horrible people.

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  • Tineke
    08/18/2017
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    No, it does not. It's like screaming "fire" in an enclosed space! Actually their behavior is terrorist and acts of war!

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  • Michelle
    08/18/2017
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    Absolutely not. Inciting violence is dangerous speech, and therefore not protected.

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  • Lori
    08/18/2017
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    Verbal opinions are one thing. Actions are another. The first amendment is to protect opinions nor violence.

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  • Kodiwodi
    08/18/2017
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    Yes. It covers Hate Speech. It does not cover the consequences of Hate Speech nor does it cover Hate Crimes.

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