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Alt-right protests follow removal of Confederate statues

September 6, 2017

Nationwide controversy emerged surrounding the extent and limitations of the First Amendment after a white supremacist “Unite the Right” protest in Charlottesville, Virginia, on Aug. 11 and Aug. 12.Kaitlin Hsu

While white supremacists held rallies in Charlottesville in May and July, the August demonstrations — both in Charlottesville and later throughout the nation — were larger-scale, with the exception of a few where the number of counter-protesters dwarfed that of the protestors.

The stated purpose of the Charlottesville rally was to protest the June renaming of Emancipation Park from Lee Park and the planned removal of a statue of Confederate general Robert E. Lee from the park, where it has stood since 1924.

Violence at the rally began when protesters marched through the University of Virginia campus chanting white supremacist slogans on Aug. 11; when they met counter-protesters, several on both sides sustained minor injuries.

On the planned rally date the next day, white nationalists, some holding Confederate flags or anti-Semitic posters, again clashed with counter-demonstrators in Emancipation Park. Chaos and attacks including chemical sprays caused the city to declare a state of emergency due to the unrest.

The protest resulted in three deaths and 35 injuries. A man, later charged and identified as James Alex Fields Jr., drove through a crowd of counter-demonstrators on Aug. 12, injuring 19 and killing one, and a state police helicopter crash resulted in the deaths of two law enforcement officers later in the day.

Five protesters assembled for the rally were caught on video committing aggravated assault against a black man, DeAndre Harris. On Aug. 25, Daniel P. Borden was charged with malicious wounding in connection to the assault, and a wanted poster was issued for Alex Michael Ramos.

Kaitlin Hsu

Since the events in Charlottesville, numerous protests and counter-protests have been organized around the country in cities including Boston, Seattle, New York City and Berkeley.

On Aug. 25, the Friday before two right-wing rallies in San Francisco and Berkeley were intended to take place, organizers cancelled, following pushback from locals.

The organizer of the San Francisco rally state that he does not support white nationalism and the rally was intended for free speech. However, both rallies received pushback from locals after the violence at the Unite the Right rally in Charlottesville.

Courtesy of Wikimedia Images
Counter-protestors stand with posters outside the White House in Washington D.C. on Aug. 13 in the aftermath of the Charlottesville rally’s violence.

Protests spur free speech debate

Experts weigh in on First Amendment protections

People walk through your town to campaign against the renaming of a local park… while chanting white supremacist slogans, carrying weapons and waving signs attacking Jews. Is this free speech? Are their actions protected by law? And what do you do?

Questions like these emerged along with nationwide controversy surrounding the extent and limitations of the First Amendment after a white supremacist “Unite the Right” protest in Charlottesville, Virginia, on Aug. 11 and Aug. 12.

While white supremacists held rallies in Charlottesville in May and July, the August demonstrations — both in Charlottesville and later throughout the nation — were larger-scale, with the exception of a few where the number of counter-protesters dwarfed that of the protestors.

The stated purpose of the Charlottesville rally was to protest the June renaming of Emancipation Park from Lee Park and the planned removal of a statue of Confederate general Robert E. Lee from the park, where it has stood since 1924.

Violence at the rally began when protesters marched through the University of Virginia campus chanting white supremacist slogans on Aug. 11; when they met counter-protesters, several on both sides sustained minor injuries.

On the planned rally date the next day, white nationalists, some holding Confederate flags or anti-Semitic posters, again clashed with counter-demonstrators in Emancipation Park. Chaos and attacks including chemical sprays caused the city to declare a state of emergency due to the unrest.

While hate speech has been discussed before in the context of the First Amendment’s protections, the events in Charlottesville brought it to the national eye.

“There’s no category ‘hate speech’ that falls outside the protection of the First Amendment. There are types of speech which might be colloquially described as hate speech that are unprotected,” said Michael McConnell, director of the Constitutional Law Center at Stanford Law School. “Those categories are speech which is immediate incitement to violence, speech that is a direct threat to another person and a few other categories.”

The protest resulted in three deaths and 35 injuries. A man, later charged and identified as James Alex Fields Jr., drove through a crowd of counter-demonstrators on Aug. 12, injuring 19 and killing one, and a state police helicopter crash resulted in the deaths of two law enforcement officers later in the day. Five protesters assembled for the rally were caught on video committing aggravated assault against a black man, DeAndre Harris. On Aug. 25, Daniel P. Borden was charged with malicious wounding in connection to the assault, and a wanted poster was issued for Alex Michael Ramos.

Pullquote Photo

What [Unite the Right protestors] are allowed to do is to meet and say what they’re saying. They have no constitutional right to be carrying shields and clubs and carrying weapons. They have no constitutional right to attack other people.”

— Michael McConnell, Director of Constitutional Law Center, Stanford Law School

Since the events in Charlottesville, numerous protests and counter-protests have been organized around the country in cities including Boston, Seattle, New York City and Berkeley.

In the days following the rally, many government officials condemned the violence that occurred.

President Donald Trump blamed “many sides” for inciting the violence, leading to criticism from many over his seeming equation of the protesters and counter-protesters. Trump recanted in a statement two days later condemning racism, and later defended his original position.

“We play this game in the United States of moral equivalency: both sides are bad, both sides have merit,” said Jonathan Kotler, an attorney and associate professor of journalism at the University of Southern California. “It’s wrong here because some things are worse than others. Some things have no redeeming value. Hate speech has no redeeming value. You have people up there protesting hatred; other people were there for the purpose of inciting hatred: not the same thing, not morally equivalent.”

Many protesters, both for and against the rally, carried weapons, including clubs, sticks and firearms. While Virginia state law allows open carry, the First Amendment does not protect violent assembly because it only limits laws affecting “the right of the people peaceably to assemble.”

“What they’re allowed to do is to meet and say what they’re saying,” McConnell said. “They have no constitutional right to be carrying shields and clubs and carrying weapons. They have no constitutional right to attack other people.”

The First Amendment also does not give protections to “fighting words”: speech that can lead to rioting or injury.

“[The First Amendment] has exceptions for fighting words, which [are] words that is just intended to basically aggravate someone and incite violence,” said Lata Nott, executive director at the Newseum Institute’s First Amendment Center. “Although there are a lot of private organizations and platforms that ban hate speech from their platform, the First Amendment does not ban or outlaw hate speech.”

Cancellation of controversial speakers’ events across the nation due to worries about injury has led to uneasiness over what officials can consider a potential safety risk and the extent that they can control speech.

“[Officials] can’t deny you a permit based on what your group stands for, but [they] can deny someone a permit for rational nondiscriminatory reasons,” Nott said. “What some people argue is that you can deny someone a permit if you think it’s going to be too much of a safety risk, and that’s something that people argue when it comes to controversial speakers and controversial groups. The problem with that is that you can take that pretty far, and we can see that if you use that reasoning, you would deny every controversial speaker a permit.”

Charlottesville government officials tried to relocate the August demonstrations’ permit to the larger McIntire Park, citing safety and organization issues, but rally organizers sued the city and obtained an emergency injunction on Aug. 11 allowing the protest to continue.

“There are restrictions that can be put on speech. The most commonly seen in the case of demonstration is whether or not the speech is going to incite a riot, incite unlawful conduct or cause physical harm,” Kotler said. “The only way that speech could have been shut down was if the authorities would have said that the speech was going to give rise to rioting or unlawful conduct or cause physical harm.”

The rally has also led to questions about the ethical role business leaders should take in politics.

Companies with web hosting services such as GoDaddy and Google discontinued the neo-Nazi website The Daily Stormer, one of the organizers of the rally, after the website published a derogatory article on Heather Heyer, the car crash victim.

Many believe that the Charlottesville rally and events like it will continue to spur discussion about the First Amendment and the extent of free speech at protests.

“These issues, they always come up when it comes to free speech,” Nott said. “It’s always the most awful speech that makes the news—the kind that goes to the Supreme Court, the kind we have to decide on—because that’s how we decide something: by the boundaries.”

First Amendment Timeline

The extent of First Amendment protections in schools has often been a subject of court cases that venture as high as the Supreme Court. Most cases relate to students' rights to expression when in a school environment.

1943: West Virginia State Board of Education v. Barnette. The Supreme Court ruled 6-3 that it is unconstitutional for the state board to require students to recite the Pledge of Allegiance in public school, overturning an earlier decision in Minersville School District v. Gobitis (1940). The justices notably did not constrain their decision to the students’ religious objections, instead establishing that students in public schools did still retain their constitutional rights.

 

1969: Tinker v. Des Moines Independent School District. The Supreme Court ruled 7-2 that neither students nor teachers shed their constitutional rights in school and set the precedent of constitutional protection of nondisruptive symbolic speech. This case  was prompted by public schools in Des Moines, Iowa, that suspended five students who wore black armbands to school as symbolic protests of the Vietnam War.

 

1982: Island Trees School District v. Pico. The Supreme Court held in a split opinion, 4-4-1, that the First Amendment restricts the ability of school district officials to remove or censor school library books, from the libraries or from class curriculums, because of disagreements with the books’ content.

 

1988: Hazelwood School District v. Kuhlmeier. Administrators attempted to remove two articles, one about divorce and one about teen pregnancy, from a student newspaper. The Supreme Court overturned a decision by the U.S. Court of Appeals for the 8th Circuit, instead ruling 5-3 that administrators could censor public school student newspapers not previously established as forums for free expression. This decision set a stricter federal standard for student expression than the previous “Tinker standard.”

 

2006: Guiles v. Marineau. In a case demonstrating the legacy of the Tinker decision, a public school in Vermont disciplined a student wearing a shirt that insulted then-President George W. Bush. The U.S. Court of Appeals for the 2nd Circuit held that the First and Fourteenth Amendments protected the student’s right to wear the shirt without being disciplined because of the Tinker decision. As the student’s shirt did not substantially disrupt educational activities, it was constitutionally protected as symbolic speech.

 

2007: Morse v. Frederick. The Supreme Court ruled 5-4 that the First Amendment did not protect a public school student’s right to display a sign referencing marijuana near the school, which had allowed students to leave to watch the Olympic Torch relay that year. Even though the student displayed the banner outside of school grounds, when the relay passed by, the court held that teachers and administrators could legally restrict student speech that encouraged illegal drug use.

This piece was originally published in the pages of The Winged Post on September 6, 2017.

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