The First Amendment and Charlottesville

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The First Amendment and Charlottesville

If you’re look­ing for peo­ple to blame for the events in Char­lottesville, you can add lib­er­als to the list, par­tic­u­larly those in the ACLU and the U.S. Supreme Court.

The abil­ity to march in Char­lottesville comes directly as a result of a U.S. Supreme Court deci­sion in 1977, with the ACLU argu­ing for neo-​Nazis to march in Skokie, Illi­nois, where many Holo­caust sur­vivors lived.

In the case, National Social­ist Party of Amer­ica v. Vil­lage of Skokie, 432 U.S. 43 (1977), the ACLU got the lib­eral bloc of the court to deter­mine that the use of the swastika was a sym­bolic form of free speech enti­tled to First Amend­ment pro­tec­tion. The court also ruled that the neo-​Nazis, under the right of assem­bly in the First Amend­ment, could march through the pre­dom­i­nantly Jew­ish city near Chicago.

As a reporter for Newsweek, I cov­ered the Skokie story and found myself puz­zled about the events back then. Today, as I teach media law, I still am rather puz­zled why the neo-​Nazis in Chicago and Char­lottesville were allowed to protest. Here is some back­ground on those events: http://​www​.chicagotri​bune​.com/​n​e​w​s​/​o​p​i​n​i​o​n​/​c​o​m​m​e​n​t​a​r​y​/​c​t​-​n​e​o​-​n​a​z​i​-​s​k​o​k​i​e​-​m​a​r​c​h​-​f​l​a​s​h​b​a​c​k​-​p​e​r​s​p​e​c​-031220170310-story.html

On its web­site, the ACLU lauds its stance as “tak­ing a stand for free speech.” More­over, the orga­ni­za­tion notes: “The noto­ri­ety of the case caused some ACLU mem­bers to resign, but to many oth­ers, the case has come to rep­re­sent the ACLU’s unwa­ver­ing com­mit­ment to prin­ci­ple. In fact, many of the laws the ACLU cited to defend the group’s right to free speech and assem­bly were the same laws it had invoked dur­ing the Civil Rights era when South­ern cities tried to shut down civil rights marches with sim­i­lar claims about the vio­lence and dis­rup­tion the protests would cause.”

The ACLU says now that it will not defend people’s free­dom of speech and right to assem­ble if they carry guns. I guess the Sec­ond Amend­ment doesn’t count anymore.

Nev­er­the­less, here’s some of what is pro­tected under the First Amendment:

–Peo­ple can burn a flag.
–Burn a cross.
–Say “f***” in pub­lic but not on the radio.
–Curse a police offi­cer.
–Use hate speech.
–Show sex­ual inter­course on HBO and the Inter­net but not on ABC.
–Call Marines homo­sex­u­als dur­ing a funeral as long as you are on a pub­lic sidewalk.

Many mem­bers of the lib­eral bloc on the U.S. Supreme Court sup­ported these pro­tec­tions, while some, if not all, of the con­ser­v­a­tive bloc did not.

The argu­ment usu­ally fol­lows the notion of the mar­ket­place of ideas — a the­ory put for­ward by John Stu­art Mills that all ideas should be allowed to be expressed because only those with the most valid­ity will tri­umph. Fur­ther­more, an arbiter of what con­sti­tutes improper speech might exclude dis­agree­able opinions.

Some­how, I think the founders may have had other ideas about what should con­sti­tute free­dom of speech and right to “peace­ably” assem­ble. The founders gen­er­ally agreed that free­dom of reli­gion was the most impor­tant char­ac­ter­is­tic of the First Amend­ment, but there was a split when it came to other parts.

As the Her­itage Foun­da­tion notes in its exten­sive back­ground on the U.S. Constitution:

[John] Mar­shall and other Fed­er­al­ists argued that the free­dom of the press must nec­es­sar­ily be lim­ited, because “gov­ern­ment can­not be…secured, if by false­hood and mali­cious slan­der, it is to be deprived of the con­fi­dence and affec­tion of the peo­ple.” Not so, rea­soned [James] Madi­son and other Repub­li­cans: even speech that cre­ates “a con­tempt, a dis­re­pute, or hatred [of the gov­ern­ment] among the peo­ple” should be tol­er­ated because the only way of deter­min­ing whether such con­tempt is jus­ti­fied is “by a free exam­i­na­tion [of the government’s actions], and a free com­mu­ni­ca­tion among the peo­ple thereon.” It was as if half the coun­try read the con­sti­tu­tional guar­an­tee one way, and the other half, the other way.

The found­ing gen­er­a­tion undoubt­edly believed deeply in the free­dom of speech and of the press, but then, as now, these gen­eral terms were under­stood quite dif­fer­ently by dif­fer­ent peo­ple. Many peo­ple did not think about their pre­cise mean­ings until a con­crete con­tro­versy arose; and when a con­tro­versy did arise, the analy­sis was often influ­enced by people’s polit­i­cal inter­ests as much as by their hon­est con­sti­tu­tional understanding.

When peo­ple argue that Pres­i­dent Trump should be blamed for the actions of neo-​Nazis, just tell them to read about Skokie and thank the lib­er­als for pro­vid­ing the abil­ity for wingnuts to speak and to assemble.

If you’re looking for people to blame for the events in Charlottesville, you can add liberals to the list, particularly those in the ACLU and the U.S. Supreme Court.

The ability to march in Charlottesville comes directly as a result of a U.S. Supreme Court decision in 1977, with the ACLU arguing for neo-Nazis to march in Skokie, Illinois, where many Holocaust survivors lived.

In the case, National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), the ACLU got the liberal bloc of the court to determine that the use of the swastika was a symbolic form of free speech entitled to First Amendment protection. The court also ruled that the neo-Nazis, under the right of assembly in the First Amendment, could march through the predominantly Jewish city near Chicago.

As a reporter for Newsweek, I covered the Skokie story and found myself puzzled about the events back then. Today, as I teach media law, I still am rather puzzled why the neo-Nazis in Chicago and Charlottesville were allowed to protest. Here is some background on those events: http://www.chicagotribune.com/news/opinion/commentary/ct-neo-nazi-skokie-march-flashback-perspec-0312-20170310-story.html

On its website, the ACLU lauds its stance as “taking a stand for free speech.” Moreover, the organization notes: “The notoriety of the case caused some ACLU members to resign, but to many others, the case has come to represent the ACLU’s unwavering commitment to principle. In fact, many of the laws the ACLU cited to defend the group’s right to free speech and assembly were the same laws it had invoked during the Civil Rights era when Southern cities tried to shut down civil rights marches with similar claims about the violence and disruption the protests would cause.”

The ACLU says now that it will not defend people’s freedom of speech and right to assemble if they carry guns. I guess the Second Amendment doesn’t count anymore.

Nevertheless, here’s some of what is protected under the First Amendment:

–People can burn a flag.
–Burn a cross.
–Say “f***” in public but not on the radio.
–Curse a police officer.
–Use hate speech.
–Show sexual intercourse on HBO and the Internet but not on ABC.
–Call Marines homosexuals during a funeral as long as you are on a public sidewalk.

Many members of the liberal bloc on the U.S. Supreme Court supported these protections, while some, if not all, of the conservative bloc did not.

The argument usually follows the notion of the marketplace of ideas—a theory put forward by John Stuart Mills that all ideas should be allowed to be expressed because only those with the most validity will triumph. Furthermore, an arbiter of what constitutes improper speech might exclude disagreeable opinions.

Somehow, I think the founders may have had other ideas about what should constitute freedom of speech and right to “peaceably” assemble. The founders generally agreed that freedom of religion was the most important characteristic of the First Amendment, but there was a split when it came to other parts.

As the Heritage Foundation notes in its extensive background on the U.S. Constitution:

[John] Marshall and other Federalists argued that the freedom of the press must necessarily be limited, because “government cannot be…secured, if by falsehood and malicious slander, it is to be deprived of the confidence and affection of the people.” Not so, reasoned [James] Madison and other Republicans: even speech that creates “a contempt, a disrepute, or hatred [of the government] among the people” should be tolerated because the only way of determining whether such contempt is justified is “by a free examination [of the government’s actions], and a free communication among the people thereon.” It was as if half the country read the constitutional guarantee one way, and the other half, the other way.

The founding generation undoubtedly believed deeply in the freedom of speech and of the press, but then, as now, these general terms were understood quite differently by different people. Many people did not think about their precise meanings until a concrete controversy arose; and when a controversy did arise, the analysis was often influenced by people’s political interests as much as by their honest constitutional understanding.

When people argue that President Trump should be blamed for the actions of neo-Nazis, just tell them to read about Skokie and thank the liberals for providing the ability for wingnuts to speak and to assemble.