No other country protects controversial speakers with the zeal of American First Amendment doctrine. Whether American free speech exceptionalism is a good thing remains deeply contested, and the Charlottesville events of Aug. 11 and 12 show why.
America’s hard-line approach to free speech takes many forms. Public officials and public figures, for example, must clear a daunting array of First Amendment hurdles before they can win a libel suit against their critics, even when what is said about them is plainly false. Other countries disagree, and believe the United States sacrifices too much of the value of reputation on the altar of free speech—just as American free speech enthusiasts believe that the approach elsewhere leaves too little breathing room for harsh criticism of those who make and influence public policy.
Similarly, the United States protects free speech and free press against the claims of privacy more vigorously than do other countries, and it is more permissive of publishing unlawfully obtained information (as with the Pentagon Papers in 1971). More relevant to recent events, the United States, as a result of Supreme Court rulings going back to the 1960s, erects a high bar before it will punish those who advocate or incite illegal action; the advocacy must be explicit, and the incitement must produce an actual likelihood of imminent illegality. Short of explicit and immediate encouragement of an angry mob, the United States—alone among nations—tolerates almost all advocacy, even advocacy of unlawful violence.
Where the United States departs most dramatically from the approaches elsewhere is with what is commonly called “hate speech”—speech that incites or encourages race-based violence or discrimination, or denigrates people because of their race, religion, ethnicity, sexual orientation or gender. Even though many people in Charlottesville and at the University believed, correctly, that the Klan, the neo-Nazis and other white supremacist groups engaged in hate speech, many people also believed, incorrectly, that the offenders had violated the law in doing so. That conclusion would be correct for much of the world—where authorities prohibit incitement to racial hatred, Holocaust denial and other forms of hate speech—but not in the United States. Supreme Court decisions dating, again, to the 1960s have made clear that not only does the Constitution not recognize the category of hate speech, but it also plainly prohibits targeting speakers because their message is racially hateful, hurtful or outrageous.
Indeed, when in 1977 the National Socialist Party of America, self-described as Nazis, proposed to march in Skokie, Illinois, a community with a majority Jewish population and an especially large number of Holocaust survivors, federal and state courts rebuffed the city’s efforts to prohibit the march, and the Supreme Court refused to hear any of the Skokie cases. While the court’s refusal to hear a case is not a decision on the merits, many understood the denial of review, in the context of the dispute’s national prominence, as tantamount to a ruling that the law protected the marchers.
America’s unique approach to hate speech remains highly controversial, even here in the United States. Our parents admonished us that “Sticks and stones may break your bones, but names will never hurt you,” but they were wrong. Insults, epithets and racially abusive language can produce mental anguish, contribute to the marginalization of targeted groups, encourage illegal discrimination and help create an atmosphere in which racial violence increases. No matter how racist, homophobic, sexist or otherwise dangerously offensive the speech at issue happens to be, however, American courts have consistently refused to let government restrict speech, parades, marches, demonstrations or rallies based solely on their content.
Perhaps that reflects a long-standing American distrust of government. Perhaps it embodies a characteristically American libertarianism about regulation of anything. Perhaps it is a reaction to the excess suppression of speech during the Red Scare of 1919 and the McCarthy era in the late 1940s and early 1950s. Regardless, regulation of content crosses an inviolable line in American First Amendment doctrine. But whatever the cause, the effect—refusal to allow regulation of hate speech because of its hatefulness—is by now well entrenched in legal doctrine.
The Problem of Content Discrimination
Much of American free speech law is premised on the principle that government—whether it is the executive branch, the legislature or the courts—cannot make distinctions based on the content of someone’s speech, especially if the distinction is based on preferring one point of view over another. Thus, although the views the white supremacists espoused in their August marches were as wrong and false as they were offensive, American free speech law reflects what Supreme Court Justice Lewis Powell observed in a 1974 libel case: “Under the First Amendment there is no such thing as a false idea.”
The opening qualification of this pronouncement is important. Justice Powell was no relativist or post-modernist. He believed there were true and false facts, and true and false ideas. But he believed as well, along with his Supreme Court colleagues, that the dangers of allowing officials to determine the truth or falsity of expression outweighed the dangers stemming from the proliferation of false facts and false ideas.
Here again reasonable minds and reasonable nations have disagreed, but the aversion to content discrimination remains firmly embedded in American constitutional law. However false and harmful white supremacist ideology is, American free speech doctrine worries even more about granting officials the power to determine which ideas are false and which are harmful. If today’s officials can suppress coalitions on the right, then tomorrow’s will have the power to suppress a united left. Republicans in power would be able to suppress Democrats, capitalists would be able to suppress socialists, and vice versa, depending on how the political pendulum swings or the wheel of the world turns.
Or at least so American law has long held. Other countries are not nearly so worried about the discretion of officials to determine the falsity of white supremacy or the harm of anti-Semitism, but the American approach—encapsulated by the phrase “content discrimination” and the traditional American fear of it—is to the contrary.
The Public Forum
Leading up to the August Unite the Right rally, the city tried to relocate the planned demonstration away from Emancipation Park (formerly Robert E. Lee Park) downtown to McIntire Park on the north end. More than content neutrality came into play to thwart the attempt. The city also had to overcome the strong constitutional protection of a “public forum.” Although the city owns Emancipation Park, the Supreme Court has held since the 1930s that municipal authorities cannot close streets, sidewalks and parks to parades, picketing, demonstrations or other forms of speech. When the journalist A.J. Liebling observed a century ago that “Freedom of the press is guaranteed only to those who own one,” he reminded us that free speech requires not only a speaker but also the resources to make that speech possible. The same holds true for picketing, parading, rallying or demonstrating, all considered forms of speech. The participants need the physical space to perform their activity, and so the First Amendment requires the authorities to keep public sites open to them.
This mandatory right of access is not absolute. Cities may adopt reasonable “time, place and manner” regulations, but such regulations must be content neutral. Charlottesville may regulate noise levels, time of day and size of crowd, for example, but it must do so without regard to the views of the speakers. Thus, when U.S. District Judge Glen E. Conrad ruled that the organizers of the Unite the Right rally could not be compelled to move their event to McIntire Park, he based his ruling in part on the fact that only the Unite the Right demonstrators, and not those who were demonstrating against them in other parks, had been asked to move. For Judge Conrad, the city had drawn a distinction based on the views expressed and thus violated the First Amendment in a way that an order to move all the demonstrations would not have.
The arrival of torch-carrying neo-Nazis to Grounds Aug. 11 presented a more nuanced public forum issue. As a public institution on state land, the University’s open spaces are subject to the First Amendment, but they are also subject to regulation, so long as it is content-neutral regulation. As such, the open areas on Grounds can be considered “limited purpose public forums.” The administration may, for example, limit the use of its property to those who have some connection to the University, but it cannot favor certain connections over others based on a group’s views or politics. So it was that the University found itself forced to allow demonstrations by those whose views essentially the entire University community found abhorrent.
Since then, the Board of Visitors has put tighter regulations in place, including reclassifying the Academical Village as a “facility,” subject to a permitting process and firearms prohibitions. In enforcing those rules, the University will need to treat all would-be demonstrators alike, regardless of whether their grievance is anti-Semitic, anti-Trump, anti-war, pro–civil rights, or even anti–the serving of meat in University cafeterias.
The Problem of the Hostile Audience
The Unite the Right protesters drew counterprotesters or, in the parlance of First Amendment analysis, the speakers drew listeners. The clashes that ensued between them raise the constitutional issue of the “hostile audience.” Before the civil rights and anti-war demonstrations of the 1960s, the solution was to restrict speech likely to spark violence between speakers and audiences. Since the 1960s, courts have rejected that approach as empowering a hostile audience to silence contrary but protected speech, known as the “heckler’s veto.” Courts and law enforcement alike now accept that their first responsibility is to protect speakers exercising their First Amendment rights, even if the rights being exercised are racist or otherwise hateful and harmful.
Although the law is now clear about the initial responsibilities of officials and law enforcement, it is less clear about when, how and on what basis authorities can step in to restrict the speaker or force an end to a previously constitutionally protected event. When we learn that University of California, Berkeley recently spent almost $2 million to protect just two highly controversial right-wing speakers, and that it cost Charlottesville more than $30,000 to provide law enforcement and related services for the July Klan rally and another $70,000 for the Unite the Right rally on Aug. 12, we wonder just how much a city, a state or a university is required to do. Must they call upon the state police before disallowing or closing an event? Must they ask the governor to deploy the National Guard? How quickly can they close an event when actual violence seems imminent? There is also an evidentiary issue: Can a speaker’s past record of inciting violence be used to restrict the person’s upcoming appearances in a way that would otherwise be impermissible?
The recent Charlottesville events bring these difficult questions to the fore, and existing law provides little guidance. The issue is not only with First Amendment doctrine, however. It lies as well with the unwillingness, appropriate or not, of courts, law enforcement and universities to impose harsh punishments on those who attempt to restrict hateful groups from exercising their First Amendment rights. As long as that is the case, there is little reason to believe that the problem of the hostile audience will disappear.
Short of an openly hostile audience, there are also cases where the interaction with speakers is less violent but nonetheless interfering. Counterprotesters can assert a heckler’s veto in nonviolent ways, such as using drums or horns to prevent speakers from being heard, or with attempts to block speakers from reaching the location designated for their speech. Should such actions be applauded as part of the civil disobedience tradition? If so, should those who interfere be willing, as so many civil disobedients have been, to accept their punishment? Or should such actions, even if technically legal, be condemned as attempts to interfere with someone’s free-speech rights? And have we achieved a fair balancing of interests between offensive speakers and offended listeners if we refuse to prevent even the most unacceptable of words and ideas from being heard?
Speaking About Speech
The point of the First Amendment is in part to encourage dialogue, but ironically and regrettably, we seem to have little serious public dialogue about the First Amendment. Those who oppose this or that speech restriction parrot standard platitudes, such as “The remedy for bad speech is good speech,” without stopping to consider whether this proposition is actually true. On the other side, those who favor restrictions trot out Oliver Wendell Holmes’ 1919 observations that speech can be restricted when there is a “clear and present danger,” and that no one has a right falsely to shout “Fire!” in a crowded theater, all the while ignoring almost a century of legal embellishments and qualifications on what were originally little more than offhand remarks. And as the opposing parties hurl hackneyed slogans at each other, we find little serious public thought about the values of freedom of speech and the qualifications that should be imposed on it.
The problem is exacerbated by the all-too-frequent failure to distinguish what the law is from what it should be. It is entirely appropriate to consider what is wrong with the existing constitutional law of the First Amendment, but students, faculty, staff and administrators at a state university remain subject to the law as it exists, warts and all. We should recognize that officials have the obligation to follow the law, even when they disagree with it. We should also recognize, however, that just because the law is the law doesn’t make it immune from criticism or change.