Three U.S. Supreme Court decisions provide rules for groups wanting to speak and demonstrate in public spaces on highly charged issues such as racial discrimination. In the 1969 Brandenburg v Ohio decision, the justices said, “Freedoms of speech and press do not permit a State to forbid 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.” In 2003 the court found in Virginia v. Black that Virginia could pass a law forbidding cross burning that sought to intimidate people but could not hold that all cross burnings be taken as intimidation. In 1955, the court decided in Capitol Square Review Board v. Pinette that the Ku Klux Klan could put a cross on the Ohio Capitol Square since the square was a public forum and religious speech should be protected along with secular expression. (Constitution Daily, August 15, 2017, by NCC Staff)
The First Amendment finds space for hate speech established recently in the ruling for the Westboro Baptist Church that picketed at military funerals as part of its anti-gay crusade. Specific incitements to violence are not protected but that alt-right hate speech and even displaying clubs and firearms are not considered incitements to violence. Cites can regulate the time, place and manner of demonstrations and given the Charlottesville violence can be expected to enact restrictions to keep protestors separate and ensure public safety. (U.S. News & World Report, August 14, 2017 by Jan Wolfe of Reuters)
Tim Cushing, techdirt, August 15, 2017, argues against banning hate speech, “There’s a huge gap between defending someone’s right to speak and defending what they’re saying. As some people need to be constantly reminded, free speech is not speech without consequences,” wries Cushing. “Ignorant, nasty, brutish statements deserve the criticism they receive. What they shouldn’t be met with is calls for the government to step in and tell everyone what sort of speech is permitted. Those protesting the statue’s removal had every right to be heard, no matter how ridiculous their arguments and beliefs.”
Noah Berlatsky, Quartz, August 15, 2017, makes a case against allowing hate speech. He argues that marginalized people such as transsexuals may have free speech rights but know if they come out, they will lose their jobs, suffer virulent verbal abuse, humiliation and ostracism. Allowing hate speech creates safe space for nothing but hate speech. In the case of blacks in America, absolute and color-blind free speech polices have resulted in law enforcement arresting non-violent blacks while violent whites evade jail time.
A University of Virginia professor, Quartz, August 14, 2017, did not see alt-right demonstrators exercising their free speech rights in a peaceful manner in Charlottesville. “What I saw at the University of Virginia…was an organized campaign to terrorize American citizens and suppress the rights of others,” wrote Christine Mahoney. The alt-right showed up with shields and weapons and walked the streets before the scheduled demonstration, punching counter demonstrators in the face. They in effect denied their opposition the right to peaceful speech and assembly.