Charlottesville, the First Amendment and the Press

Published Sept. 2017

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

Most reactions to the march by white supremacists in Charlottesville, Va., last month condemned the marchers, their message and their use of swastikas, chants and Nazi imagery. But there were also questions of why they were allowed to hold their march and spread their vile message of hate.

The latter question is just one of the latest examples of a recent trend in which some are asking whether certain groups and individuals should be permitted to express views that offend others. There has been violence on some college campuses in reaction to controversial speakers like conservative firebrand Milo Yiannopoulos and Richard Spencer, leading some schools to cancel such events to avoid controversy and security issues. Internet companies are revoking hosting services from supremacist websites.

Meanwhile, legislators in several states—but apparently not South Carolina—have proposed or passed laws requiring demonstrators who are convicted on crime connected to their protests to pay the police and other public safety expenses of their demonstrations. Other states have passed laws immunizing drivers who injure protestors blocking public roads. Of course, the one death in Charlottesville resulted from a car running into a group of counter-protestors.

Even the American Civil Liberties Union, which traditionally has offered legal advice and counsel to even the odious of speakers, questioned the extent of its commitment to defend such groups after the Charlottesville march. In the end, the group declared that it would no longer represent while supremacist groups who hold armed demonstrations that are likely to lead to violence.

Finally, recent polls have shown wavering support for free speech rights for extremist groups. A poll by McLaughlin & Associates found that 85 percent of respondents agreed that freedom of speech is a fundamental right in the United States. Yet in a recent Economist/YouGov Poll, 54 percent of respondents said that they would oppose an ISIS member speaking in their community; 45 percent would oppose a speech by a Klu Klux Klan member; and 47 percent would oppose a Neo-Nazi speaker.

But the First Amendment’s protection of freedom of speech includes not only speech that we as a society generally find acceptable. In fact, it specifically protects speech we would rather not hear, because it is insulting, offensive, repulsive and/or uncomfortable.

Most recently, Chief Justice John Roberts reiterated this sentiment in his plurality opinion in Matal v. Tam, which struck down rules barring offensive trademarks:

[The idea that the government has an interest in preventing speech expressing ideas that offend] strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

But while the Court has consistently held that the First Amendment protects even the most vile speech against government censorship, it has also held that speech may lead to sanctions if it advocates violence or other immediate illegal action. In a 1969 case reversing the conviction of a Klu Klux Klan leader who gave an incendiary speech, the Court held that

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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.

But this is a very high standard, and language that is “merely” offensive without the danger of imminent lawlessness is, indeed, protected by the First Amendment. As U.S. Supreme Court Justice Oliver Wendell Holmeswrote in 1929, “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

This tradition of tolerance for expression of offensive speech is a hallmark of American law, and protects speakers of all types: from the most radical to the most reserved, and everything in between. This includes, of course, the news media.

John Marshall Harlan II wrote in 1971 that “one man’s vulgarity is another’s lyric.” And while the protections of the First Amendment can often result in an offensive cacophony, they also orchestrate the harmony of freedom.

 Eric P. Robinson is an assistant professor at the USC School of Journalism and Mass Communication, and is Of Counsel to Fenno Law in Charleston / Mount Pleasant, although any opinions are his own. He has worked in media law for more than 18 years, and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice.

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