A group white nationalists are planning an anniversary rally in D.C. that’s been dubbed Unite the Right 2 on Sunday, Aug. 12. Even after the violence of last year’s protests in Charlottesville, Virginia — during which a man drove a car into a group of counter-protesters, killing one woman — white nationalists are gathering again. And if you're wondering why this allowed to happen, it's because the government legally can’t stop these white supremacists from demonstrating.
The First Amendment protects their right to freely speak and express their views by peaceably assembling. Although many people disagree with white supremacy, many lawyers and professors say that limiting their ability to voice their views would be a slippery slope to limiting everyone’s ability to speak up for what they believe in.
“The single most important idea underlying the First Amendment is that government may never suppress speech or regulate speech because of disagreement with, or dislike of, or even deep loathing of its viewpoint, its message, its content, and its ideas,” Nadine Strossen, a professor of law at New York Law School and the author of Hate: Why We Should Resist It With Free Speech, Not Censorship tells Bustle.
The First Amendment
“One of the most clearly established core principles in First Amendment law as the Supreme Court has interpreted the First Amendment over time is that the government is not allowed to regulate people’s speech or expression or assembly on the basis of their viewpoints,” Sara Mayeux, an assistant professor of law at Vanderbilt University tells Bustle
Basically, the government cannot say: If you’re anti-abortion, you’re allowed to protest, but not if you’re pro-abortion rights, and vice versa.
So white supremacists can have their chants and their marches — but so can counter-protesters. It’s all part of being a free society. The First Amendment prevents the government from picking and choosing who it and we will listen to.
The American Civil Liberties Union’s Vera Eidelman points out in an email statement to Bustle that the First Amendment also gives us the power to speak out against those with whom we disagree. “The same legal protections that allow racists, fascists, and neo-Nazis to assemble also protect those who stand for liberty, justice, and equality — and who criticize and shame anyone who doesn’t,” Eidelman says.
That said, some First Amendment experts argue that there are some limits to those First Amendment protections. “Speech, including assembly, can be regulated if it actually poses a genuine emergency,” Strossen says. She explains that an emergency principle of the First Amendment allows the government to limit speech if it directly “causes certain serious, imminent, specific harm that can’t be averted in any way short of suppressing the speech.”
For example, if a speaker is targeting one individual or group and incites violence against them to a crowd of people, the emergency principle may apply. Last year’s Charlottesville protests offer a complicated example of the intermingling of speech and violence.
“When you have demonstrators marching with lighted torches or brandishing fire arms, that, to me, definitely would satisfy the standard of a true threat,” Strossen says.
Last December, the city of Charlottesville actually did deny an application from the organizer of the first Unite the Right rally, Jason Kessler. However, the D.C. rally was approved and will take place. The Washington Police Chief Peter Newsham told CNN that no guns will be allowed near the rally because local laws allow police to restrict gun access in specific areas if they see fit.
Faith Sparr, a communication studies lecturer at the University of Michigan, tells Bustle the decision to ban guns from the protest may actually protect more speech. Not only could it potentially limit violence, but it may protect the First Amendment rights of the counter-protesters. “How free do you think you’re gonna feel to counter-protest if you see somebody who’s got this long gun on the front of their body, right?” Sparr says. “So that’s an interesting interplay between the Second Amendment and the First Amendment.”
The Dangers Of Censorship
Many lawyers and First Amendment advocates believe that protecting speech — even speech you hate — is absolutely necessary. As Strossen puts it: “One person’s hate speech is somebody else’s cherished speech.”
She believes that if you start saying white supremacists can’t share their views because it’s hate speech, you might be limiting yourselves from speaking out in the future.
“The concept of hate speech or hateful speech is inherently a subjective one,” Strossen points out. “I can tell you that many politicians in this country have called Black Lives Matter activism hate speech. During the civil rights movement, speeches and demonstrations by Martin Luther King and other civil rights demonstrators were attacked as hate speech.”
What You Can Do
With that said, Sparr points out that laws that protect white supremacists' right to voice their opinions aren't as black and white as some First Amendment scholars make them out to be. She’s seen firsthand from her students how racist and anti-Semitic sentiments can affect people in real time.
"It’s hard because there’s the First Amendment scholar in me, but then personally I find it entirely morally repugnant. I’m not of the ilk that thinks this speech is harmless… I think that normalizing this sort of speech is extremely harmful," she says.
If the neo-Nazis can have protests, so can everyone else. Sparr says there’s some debate about whether people should ignore hate speech or counter-protest it. But she says that those who stand up and say “not in my America are you going to normalize this hatred” are fighting for a good cause within their rights.
At Sunday’s protests, plenty of people are going to exercise those rights. Vox reported that DC Against Hate is expecting at least 1,000 counter-protesters to show up, while the application for a permit that Unite the Right 2 organizer Kessler requested through the National Parks Service only expected about 400 attendees.
It’s obvious that who makes the conversation can be a sensitive topic in America. Strossen chalks it up to the fact that speech can be so influential when it comes to the way we perceive and understand the world.
"Speech is powerful," she says. "It can change people’s ideas. It can motivate people to act. And so just as hateful speech can have that potential power, so certainly can anti-hate speech."