Charlottesville, Va., home to the University of Virginia and Thomas Jefferson's mountain-top plantation Monticello, underwent a significant image change as a result of the violent demonstrations it encountered during the weekend of Aug. 11-13. One important outcome of the overt hatred on display that weekend was that many of us began to revisit the concept of "freedom of speech." Are white nationalists, the KKK, neo-Nazis and others protected by the First Amendment to our Constitution when they openly exhibit their hatred of people solely because of their race, religion, ethnic origin, sexual orientation, disability or gender? The issue surfaced well before "Charlottesville, when it came up as a result of the disturbances following UC Berkeley abruptly cancelling a planned February speech by conservative provocateur Milo Yiannopoulos. As a consequence of the negative press the university received, and the cumulative pressure generated nationally by recent events, Cal Chancellor Carol Christ decided to proclaim this school year a "free speech" year.
The First Amendment to our Constitution, officially adopted Dec. 15, 1791, reads: "Congress shall make no law respecting the free exercise 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 redress of grievances."
Predictably, legal challenges delineating specifically what these rights did and did not include proliferated. Multiple courts concluded that the amendment included concepts like: The right not to speak - specifically the right not to salute the flag (West Virginia Board of Education v Barnette - 1943); using certain offensive words and phrases to convey political messages (Cohen v California - 1971); and engaging in symbolic speech, like burning the flag in protest (Texas v Johnson -1989). Excluded was the right to incite actions that would harm others - like shouting "fire" in a crowded theater (Schenck v United States - 1919).
In "Matai v Tami" (2017), Justice Samuel Alito, writing in support of a unanimous Supreme Court decision affirming the judgment of the Court of Appeals, wrote: "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."
Citing legal precedent, the ACLU, generally left-leaning, sued the city of Charlottesville to allow the "Unite the Right" rally to happen downtown. After numerous participants arrived carrying loaded firearms the organization appeared to retrench retroactively, publicly expressing that "firearms and free speech don't mix." However, legally, the relationship between the First and Second Amendment is complicated, and the issue was not pursued.
Had the demonstration taken place in countries like Germany, France, Denmark, The Netherlands and others, chances are that participants would have been fined or jailed. Many countries have laws forbidding hate speech. We don't, even though there have been times in our history where such legislation was actively pursued. An early assault on free speech came from the Alien and Sedition Acts of 1798, which permitted prosecution of individuals who voiced or printed what were deemed to be malicious remarks about the president or the government. The acts were passed by a Federalist Congress, signed by President John Adams, and designed to limit the power of the opposition Republican Party. Enforcement ended after Thomas Jefferson was elected president in 1800.
Another attempt was made in 1918 when Congress passed a different Sedition Act, essentially consisting of amendments to the Espionage Act of 1917, prohibiting many forms of speech, including "any disloyal, profane, scurrilous, or abusive language about the form of our government or our flag." It was intended to prevent insubordination in the military, and to prevent the support of US enemies during wartime. Some 1,500 prosecutions were carried out, resulting in more that 1,000 convictions (Paul Avrich, Sacco and Vanzetti; The Anarchist Background, Princeton University Press, 1991). The amendments were repealed in 1921. The Espionage Act was left intact.
While we correctly assert that the opinions expressed during the "Unite the Right" rally in Charlottesville ran counter to the values we as a country embrace, it would be un-American to deny sympathizers the right to hold these. Justice Alito's opinion in "Matal v Tami" should resonate with all of us. Marches and hate spewing diatribe from white nationalists and Nazis, and, for that matter, Colin Kaepernick protesting racial inequality by kneeling during our national anthem, may make many feel outright uncomfortable. Denying them the right to do so will make all of us less American.
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