According to Joseph Rizoli the First Amendment rights of free speech and assembly only extend to those with government-issued permits to exercise those rights (The real haters at Charlottesville, Aug. 15). Thus, the counter-protesters to the supposed non-haters had no right to assemble, no right to speak freely, only to stay home and shut up. Anything else is hate, according to Mr. Rizoli.

Of course, theres no excuse for either side throwing bricks or anything else at the other side, except perhaps insults, even without a permit. You, know, its the free speech thing. I notice, however, that Mr. Rizoli did not mention driving a car into the counter-protesting haters, apparently because having a permit to exercise ones First Amendment rights also allows attacking those without a permit with a 3,000-pound, deadly weapon.

The MetroWest News frequently publishes the First Amendment on the editorial page. Mr. Rizoli should read it, contemplate it, and try to understand it.

K. A. Boriskin

Bellingham

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Letter: Peculiar First Amendment interpretation - Opinion - Milford ... - Milford Daily News

Updated 9 hours ago

Decades of Supreme Court decisions have upheld the right of anyone to peacefully demonstrate in public spaces no matter how abhorrent their views, said Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania.

He has firsthand experience. When Pittsburgh refused a permit for a Ku Klux Klan rally at the City-County Building in 1997, Walczak went to court to defend the group's First Amendment rights. He was among the onlookers when the Klan held its rally.

That speech was vile, he said.

Ironically, one of the speakers cursed the ACLU despite the organization standing up for their rights, Walczak said.

In the wake of the violent white nationalist rally in Charlottesville, Va., several people and groups have criticized the ACLU for representing the rally organizer in a dispute over the demonstration's location.

ACLU Executive Director Anthony Romero said Thursday that the organization will no longer represent hate groups who want to demonstrate with firearms, according to the Wall Street Journal.

Getting criticized for representing unpopular groups has been familiar territory for the ACLU since 1977 when the nonprofit represented a neo-Nazi group that wanted to march through the Chicago suburb of Skokie but was refused a permit by the city.

The ACLU won the case and lost about 30,000 members, and the group never held its march.

We believe that rights are meaningless unless they belong to everybody, Walczak said. Everybody has a right to peaceful protest and assembly.

The Pittsburgh administration tried to stop the 1997 rally, arguing that it would lead to violence, he said. The same rationale has surfaced as a reason to block alt-right rallies in the wake of Charlottesville, where one counter-protestor was killed and several others were injured when a white nationalist drove his car into the crowd.

Known as the heckler's veto in legal circles, the same argument was used in the South to shut down civil rights marchers, Walczak said.

You can't shut down somebody exercising their constitutional right because there might be violence, he said. The solution is not to silence the speaker but to address the lawbreaker.

Even if previous rallies by the same group have turned violent, the First Amendment doesn't allow the government to curtail the rights, said Bruce Ledewitz, a Duquesne University law professor who teaches state and federal constitutional law.

From a government standpoint, I can't assume that you're going to break the law, he said.

That's true even if the speaker has been convicted of committing a crime during a previous event, he said.

You can't say that because you broke the law in the past, you can't speak, Ledewitz said. Unless you tell me you intend to incite violence, I have to assume that you will be peaceful and that others will be violent. My obligation at that point is to protect your right to speak.

If others show up and try to disrupt the demonstration, technically speaking, the police have an obligation to arrest those people, he said.

That doesn't mean people can't heckle a speaker, said Eugene Volokh, a UCLA law professor who teaches First Amendment law.

Throwing tomatoes or threatening to beat up the speakers if they don't stop talking is not protected by the First Amendment. Catcalls or shouting questions generally is protected unless it reaches the point of drowning out the speaker or violates a state law.

It's something of a matter of degree, he said.

The venue partly determines how much heckling is allowed, he added.

It is pretty clear that nobody expects library silence at a park, he said.

Another issue raised as a result of Charlottesville is whether the First Amendment protects people from losing their jobs if their employers disagree with their message.

The short answer is no,' unless it's a public employer, said Sam Cordes, a lawyer who specializes in employment cases.

Public employees are shielded from being fired as long as they're speaking on a matter of public concern, he said. While the First Amendment doesn't protect private employees, federal laws provide protection in some instances, he said.

If someone is speaking out against illegal workplace discrimination, federal anti-discrimination laws protect them even if the company they're speaking against isn't their employer, Cordes said. An 1866 law also protects people who are protesting commerce-based racial discrimination, such as a restaurant refusing to serve people because of their race.

The speaker is protected even if the claim isn't accurate, as long as the person had a good-faith, reasonable belief that it was true, Cordes said.

Brian Bowling is a Tribune-Review staff writer. Reach him at 724-850-1218, bbowling@tribweb.com or via Twitter @TribBrian.

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Vile speech still protected by First Amendment, experts concede - Tribune-Review

You know our representatives have gone off the deep end when they begin considering imposing a tax on the First Amendment to raise more government revenue. But unfortunately, thats the reality were now living in.

Recently, the Daily News and Washington Times reported that party leadership is considering replacing the failed border adjustment tax with revenue raisers from former Rep. Dave Camps (D-MI) 2014 tax reform plan. Allegedly, one of the top contenders for replacement is his old advertising tax provision, which would scrap advertisings full deductibility as a business expense and make it only half deductible, with the other half being amortized over a ten-year period.

Speaker Paul Ryan (R-WI) and Ways and Means Committee Chairman Kevin Brady (R-TX) are too smart to let this tax go into their soon to be released tax reform proposal. If it arises, they must use their knowledge and instincts to kill the provision, because passing such a tax would undoubtedly be political and economic suicide.

Against Our Founding Values

Perhaps the chief spark of the American Revolution was Great Britains imposition of an advertising tax the Stamp Act on the colonists, which was perceived to be a huge cost burden and an unnecessary limit to residents accessibility of important news. The tax was so unpopular that American citizens began unionizing and engaging in mob violence against stamp collectors. Parliament was forced to repeal the provision after just one year, but the colonists never forgave and never forgot. They ended up declaring their independence and engaging in armed rebellion against their mother country just years later.

Unconstitutional

After the colonists won that war and formed their own country, they established the First Amendment, which served as a safeguard against any future regulations of free speech.

By holding back Americans money for over a decade, the Camp ad tax proposal would be violating that amendment by essentially making free speech a dollar and cents game. Only those who could afford to do without the money would be able to continue.

Its clearly unconstitutional, and as constitutional scholar Bruce Fein at Huffington Post and litigation attorney Christopher Cooke at The Hill have detailed, theres plenty of Supreme Court precedent to prove it. Under the plan, advertising would be treated worse than every other business expense that receives full expensing, making it a clear violation of the First Amendment that would lead to the bankrupting of local newspapers and radio stations. This would keep communities in the dark about whats going on around them, all while adding more monopoly strength to the already-powerful cable news giants. Essentially, it would do exactly what our founding fathers tried to prevent.

Economic Growth Killer

Going against our founding principles and governing documents is bad enough, but the worst part about this tax is that it wont even be successful at what its brainchild intended for it to do fill Washingtons coffers.

There are few things that naturally stimulate the economy more than advertising spending. Reports have shown that annually, ad tax spending generates approximately 16 percent of the United States economic activity, as well as 14 percent of total U.S. employment. Thus, imposing such a tax will reduce federal revenue by hampering the many parts of the economy that are dependent on advertising.

An ad tax was already tried on the state level, and not surprisingly, it failed miserably. After campaigning on not raising taxes, Republican Governor Bob Martinez (R-FL) approved an ad tax, which destroyed $2.5 billion in personal income and washed away 50,000 jobs. The tax actually cost the state money the taxs administrative costs ended up exceeding the tax revenue.The public was rightfully outraged at the taxs futility, prompting the New York Times to report that Martinez suffered political embarrassment in his first year in office by having to shift from ardent support of the tax to advocating its repeal.

Conclusion

Clearly, including the Camp advertising tax in the so-called 2017 tax reform bill would be economic and political suicide, especially for the party that is supposed to be championing limited government and constitutional policymaking. A large portion of the House of Representatives understands this, which is why 124 members signed onto a bipartisan Dear Colleague letter to congressional leaders, stating: The potential for strengthening our economy through tax reform would be jeopardized by any proposal that imposes an advertising tax on our nations manufacturing, retail and service industries. The ball now lies in the Big Six tax reformers hands. Will they do whats best for the economy and the American people, or whats most pleasing to corporate donors and cable news talking heads?

Steve Lonegan is the former Mayor of Bogota, NJ and a frequent guest on Fox News, CNN, and MSNBC. Steve is the former New Jersey Chairman of Sen. Ted Cruzs presidential campaign, a former senior staffer for Americans for Prosperity and the American Principles Project, and a Republican candidate in several high-profile national political races.

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Lonegan: House Leadership Must Kill the First Amendment Tax - Breitbart News

In spite of weeks of preparation, the city of Charlottesville was the target of an act of domestic terrorism that cost one woman her life, and had a helicopter accident lead to the deaths of two state troopers, McAuliffe said in a statement that accompanied the executive order:

In the aftermath of this tragedy, several groups have requested permits to hold similar-styled events at the Lee Monument in Richmond. State and local officials need to get ahead of this problem, so that we have the proper legal protections in place to allow for peaceful demonstrations, but without putting citizens and property at risk. Let me be clear, this executive order has nothing to do with infringing upon first amendment rights. This is a temporary suspension, issued with the singular purpose of creating failsafe regulations to preserve the health and well-being of our citizens and ensuring that nothing like what occurred in Charlottesville happens again.

The statementadded:

Governor McAuliffe will issue a related executive order convening a task force, headed by Secretary of Public Safety and Homeland Security Brian Moran to study the safety concerns that arose from the events of August 12th. The Department of General Services will craft their new emergency regulations based on the recommendations of this new task force, which will be issued within three months.

Citing the power vested in me as the Chief Executive by Article V of the Constitution of Virginia and the laws of the Commonwealth, McAuliffe ordered the following:

No demonstrations shall be authorized at the Lee Monument in the absence of a permit issued by the Department of General Services. The term demonstrations includes demonstrations, processions, picketing, speechmaking, marching, vigils, and all other like forms of conduct, that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers. This term includes the display of flags, banners, or other demonstratives designed to communicate a message.

The Department of General Services is directed to promulgate emergency regulations by November 18, 2017 to govern any public use of the Lee Monument based upon the recommendations from this task force.

Breitbart News contacted several constitutional law experts, none of whom would go on the record on such short notice to comment, for fear of retribution.

Breitbart News also contacted the executive director of the Virginia ACLU for comment but has not received a response.

Despite McAuliffes assertion, the executive order has nothing to do with infringing upon First Amendment rights, one constitutional law expert told Breitbart News on background that the executive order violates the First Amendment.

A 90-day ban on expression here violates the First Amendment. This sort of restriction is subject to strict scrutiny, under which the restriction is presumed unconstitutional, and the government must prove that is it narrowly tailored to achieve a compelling public interest. This EO should fail that test, the expert said.

The constitutional law expert anticipates that any legal challenge to the executive order will likely end up at the Supreme Court.

However, this is Virginia, which on appeal is in the Fourth Circuit. That court is now the most liberal appeals court in the nation, to the left of the often-maligned Ninth Circuitten liberals, twomoderates, and only threeconservatives. And there are no vacancies on the 15-member court, so it would probably take multiple consecutive terms of Republican presidents to take it back. The challengers would face an uphill battle in front of the Fourth Circuit, the expert added.

The order violates the First Amendment, another constitutional law expert told Breitbart News.

The state will say it is content neutral, and some statist judge could uphold it on those grounds, but thats a corrupted interpretation of the First Amendment, which we all know is common, the expert added.

Cornell University Law Professor William Jacobson wroteat Legal Insurrection that there are a number of such gathering storms and threats to liberty.

As part of the reaction to Charlottesville, the NY Timesran a chilling Op-Ed by K-Sue Park, a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law, Jacobson noted, adding, The Op-Ed is chilling because it represents a significant strain in the legal community and on campuses, that freedom of speech needs to be viewed in a social justice narrative.

In that New York Times op-ed, The A.C.L.U. Needs to Rethink Free Speech, Park wrote:

The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.

After the A.C.L.U. was excoriated for its stance, it responded that preventing the government from controlling speech is absolutely necessary to the promotion of equality. Of course thats true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.. .

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

Parks view is standard critical race theory narrative, thats what makes it so chilling, Jacobson concluded.

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Virginia Gov. Terry McAuliffe Issues Executive Order That Violates First Amendment - Breitbart News

As a journalist, I like to think I know a little something about the First Amendment to the U.S. Constitution.

Like most students in the United States, I studied the Bill of Rights in grade school and learned the First Amendments protections by rote: freedom of speech, religion, assembly, petition and the press. (That last one is now my bread and butter.)

In later years, I dove a little deeper by reading landmark U.S. Supreme Court decisions in college like Tinker v. Des Moines Independent School District, in which the court found in 1969 that black armbands worn to protest the Vietnam War were protected symbolic speech.

That was the same year the court decided Brandenburg v. Ohio, and determined that government could not punish public speech, including that of KKK leader Clarence Brandenburg at a 1964 Klan rally, unless it is directed at inciting or producing imminent lawless action and is likely to spur such action.

Im no constitutional scholar, but I do know that protections exist even for hateful speech, the kind reported extensively in the aftermath of the white nationalist rally last weekend in Charlottesville, Va., where ensuing violence claimed the life of 32-year-old counter-protester Heather Heyer.

Even though most Americans would agree that the racist rhetoric spewed by Neo-Nazis, the KKK and other hate groups is vile and unsettling, many of us would likely also agree that it, too, must be shielded by the First Amendment to avoid creating an environment ripe for censorship and censure.

There it is, folks, the slippery-slope argument. End of story.

Well, not quite.

Im getting sort of sick and tired of all the absolute-constitutional-rights talk. Theres nothing absolute about constitutional rights, said Justin Brooks, a professor at California Western School of Law in San Diego.

Brooks said as much in a post he shared on Facebook last week, along with a photo of tiki-torch bearing white nationalists gathered on the University of Virginia campus. He added, Hate speech should not be protected speech.

The post attracted many responses and prompted a robust debate among friends and colleagues. It also prompted a call from the Union-Tribune.

Brooks said he disagrees with the U.S. Supreme Court, which has long held that there is no general exception for hate speech under the First Amendment, but has identified a few well-defined and narrowly limited exceptions that include obscenity, defamation, fraud, incitement and true threats.

(The court) has drawn the line you have to be inciting violence in order for it to be restricted, Brooks said. What bothers me about this discussion is it doesnt recognize how hurtful some of that hate speech is. At a certain point, speech can actually cause harm to individuals.

He said he understands the fear many Americans and the courts feel about the prospect of regulating hate speech, because defining it is subjective. But he argued that it is possible to draw a narrow definition that regulates public displays of hate, based on race, gender, nationality, ethnicity and sexual preference.

There is no doubt that the hate speech promoted by the KKK and Nazis causes harm to the members of our community who are targeted, Brooks said. Therefore, it is appropriate to regulate that speech.

He didnt need social media to know his views on the subject are unpopular, particularly among others in legal community. (See: slippery slope.)

Recently, the American Civil Liberties Union represented Jason Kessler, organizer of the Unite the Right rally in Charlottesville, in a lawsuit to keep the far-right groups permit to protest at a downtown park.

In response to criticism, ACLU Executive Director Anthony Romero wrote a statement explaining the nonprofits decision to represent white supremacist demonstrators in court. In it, he acknowledged that speech alone can have hurtful consequences, but argued that the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate.

Preventing the government from controlling speech is absolutely necessary to the promotion of equality, he wrote.

dana.littlefield@sduniontribune.com

Twitter: @danalittlefield

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How far to the First Amendment's protections go when it comes to hate speech? - The San Diego Union-Tribune

Robert Shibley, Opinion contributor Published 10:22 a.m. ET Aug. 17, 2017 | Updated 10:24 a.m. ET Aug. 17, 2017

In Charlottesville, Va., on Aug. 13, 2017.(Photo: Tasos Katopodis, epa)

Americans were shocked by the naked political violence we saw this weekend in Charlottesville, Va. Commenters on the left and the right immediately blamed the usual suspects. The right blamed identity politics. The left blamed entrenched racism. But an obvious cause of injury and death is once again being overlooked: the fact that the violence was allowed to get underway at all.

State, local, and even college campus leadership appear to be telling police to stand by while some degree of unlawful violence takes place right before their eyes. Yet when that violence predictably spirals out of control, the authorities profess their inability to have done anything to stop it. Meanwhile, those inclined to violence are emboldened, secure in the knowledge that the publicity payoff is high and the odds of punishment low.

More: Three homeland security lessons from Charlottesville: Michael Chertoff

More: Trump Tower presser proved our president is far worse than a racist

This must stop. Freedom of expression is what gives us the ability to hash out societal issues through argument instead of physical conflict, but it is only meaningful when people are reasonably confident that they will be physically safe while they speak and listen. When the authorities simply stand by and let political violence occur, even in the hope of the conflict somehow de-escalating itself, they send the message that both sides have a free hand to violently attack their opponents. This makes a mockery of the First Amendment rights to free speech and assembly.

After the riot that successfully prevented Milo Yiannopoulos from speaking at the University of California, Berkeley, in February, many reported on the conspicuous lack of police involvement despite the injuriesand destruction. I personally spoke to a woman who had come to see the speech. Having been pepper-sprayed and nearly blinded by a violent protester, she told me she crawled over three layers of crowd barriers to reach a building with dozens of police inside. Yet when she reached the door, the police refused her entry.

Likewise, CNN reported that in Charlottesville, both sides agree that one group didn't do enough to prevent the violence as the crowds grew and tensions flared: the police. The organizer of the Unite the Right rally complained that police purposefully created the catastrophe that led to a melee in the streets of Charlottesville, while a Black Lives Matter leader attending the counter-protest remarked, It's almost as if they wanted us to fight each other.

More: Trump champion: Bury Confederate romanticism. It's indefensible and bad for GOP.

POLICING THE USA: A look atrace, justice, media

Its hard to think of a more thankless task than riot policing. But when authorities fail at the basic task of preventing mob violence, both political and policy questions need to be asked. When the Huffington Post reports that Several times, a group of assault-rifle-toting militia members from New York State played a more active role in breaking up fights than the police, law enforcements response needs serious rethinking.

There is one group of people who have so far consistently benefitted when political violence has been allowed to take place: the politicians who lead our localities and the de facto politicians who run our campuses. They avoid the political fallout from images of police confronting violent protesters (who may also be their supporters), they get to blame whichever side they like less for causing the violence, and get to pretend to fulfill their responsibility to keep people safe by making it harder for controversial viewpoints to be expressed.

Ann Coulter had to cancel a speech at Berkeley after the school insisted it would not be safe for her to speak on campus. Virginia Governor Terry McAuliffe blamed the ACLU of Virginia and a federal judge for blocking the citys attempt to revoke the rallys permit, saying We've got to look at these permits. This week, Texas A&M and the University of Florida announced that safety concerns prevented them from hosting speeches by Richard Spencer that are several weeks away. In contrast, in the 1960s American Nazi Party founder George Lincoln Rockwell was able to speak at UCLA, Michigan State, Brown, and other colleges, before audiences containing people who might have fought or lost loved ones to actual German Nazis. How can it be that hosting a similar speaker is impossible now?

Trading our free speech rights for the opportunity to be victimized by political violence is tremendously foolish, as is turning the blame for it on our civil liberties or those who defend them. Benjamin Franklin famously told a curious Philadelphian that Americas founders had given us a republic, if you can keep it. This is exactly what he was talking about.

Robert Shibley, an attorney, is executive director of the Foundation for Individual Rights in Education (FIRE).

You can read diverse opinions from ourBoard of Contributorsand other writers on theOpinion front page, on Twitter@USATOpinionand in our dailyOpinion newsletter. To respond to a column, submit a comment toletters@usatoday.com.

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Police must act fast to protect First Amendment rights: Robert Shibley - USA TODAY

Can President Trump block citizens from following his own Twitter feed? Hear about the First Amendment aspects of this pending legal case.

The Knight First Amendment Institute at Columbia University has filed suit on behalf of several Twitter users who were denied the ability to follow the Presidents Twitter feed after they made comments critical of him. The Institute claims that the ban is a violation of a First Amendment right to free speech and free assembly, and that a public officials social media page is a designated public forum.

The Justice Department, defending President Trump, says the courts are powerless to tell President Trump how he can manage his private Twitter handle and the Institutes requests would send the First Amendment deep into uncharted waters.

Joining our We The People podcast to discuss these arguments are Alex Abdo, a senior staff attorney at the Knight First Amendment Institute and Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law.

CREDITS

Todays show was engineered by Jason Gregory and produced by Ugonna Ezeand Lana Ulrich. Research was provided by Lana and Tom Donnelly.

Continue todays conversation on Facebook and Twitter using @ConstitutionCtr.

Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.

Please subscribe toWe the Peopleand our companion podcast,Live at Americas Town Hall, on iTunes, Stitcher, or your favorite podcast app.

We the Peopleis a member of SlatesPanoply network. Check out the full roster of podcasts at Panoply.fm.

And finally, despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visitconstitutioncenter.orgto learn more.

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Podcast: Trump, Twitter and the First Amendment - Constitution Daily (blog)

Earlier this week, far-right groups announced intentions to organize a March on Google in response to that companys firing of an employee over a memo he wrote about the companys diversity policies. The cities the groups were targeting were Atlanta, Austin, Boston, Los Angeles, Mountain View, New York, Pittsburgh, Seattle and Washington, D.C.

Days later, citing credible alt-left terrorist threats, those right-wing groups called off their planned demonstrations. It is presently unclear whether or not those demonstrations will take place, or have indeed been called off.

What is plainly evident is that police in those cities and across America must gird for the worst. The law enforcement officers who are charged with protecting peoples First Amendment rights to free speech will be forced to hold the ground in the middle, caught between the lines formed by the warring factions of left-wing and right-wing protesters and counter-protesters.

Those cops are on the front lines of what may turn into violent conflict, whether they like it or not.

There are conflicting reports floating around the internet about whether or not political leadership in Virginia told law enforcement to stand down and allow the violence in Charlottesville to escalate to the point of murder, attempted murder and domestic terrorism.

Whether or not a stand down order was given, we must take stock of the fact that violent conflict between these groups was as predictable as the sunset. Anyone who was paying even the slightest attention to the 18 months that preceded the election of Donald Trump to the presidency could have predicted an escalation of violence.

During the campaign, we saw people shouting down the group they oppose. On both the left and the right we saw people throwing punches at each other rather than sitting down and trying to talk.

We saw protesters on both sides of the political spectrum show up at gatherings held by their perceived opposition, armed not just with grievances, but with clubs and bats and improvised shields. They came in fatigues, or dressed in all black clothing. They wore masks and bandanas over their faces. Fists flew and blood was shed on multiple occasions.

In many of those cases, these groups were separated by an emasculated force of peace officers who had neither the commands nor the capabilities to actually keep the peace. In many cases, those cops were ordered to not carry riot shields. They could not wear protective helmets. They could not carry OC spray. They were basically told, You cannot have the tools and tactics to keep these two sides apart.

This cannot be the plan going forward.

Gordon Graham, a retired California Highway Patrol Captain and risk management expert, has famously said for many years that nearly every bad outcome is predictable and that predictable is preventable.

It must be remembered that the First Amendment allows for peaceable assembly and that violence is not free speech. Mayhem and lawlessness must be stopped before it can start. This can only happen if police across the country are empowered to show up to these demonstrations in full riot gear, with well-defined marching orders to stop protests from devolving into madness.

Whether or not the announced (and then, apparently, cancelled) white nationalist demonstrations take place this weekend, we know that such events will inevitably happen in the coming weeks and months. Events will be organized by the other side too.

The politics of hate and intolerance has been worsening for too long.

Last weekend in Charlottesville ended in tragedy, and some pundits have said that we as a nation are as divided as we were during the tumultuous 1960s.

The question becomes, will political leaders have the fortitude to give the cops the authority to quell the violence in a tactically appropriate fashion?

Can police forces in the United States prevent future bloodshed? I hope so. But hope is not a strategy, and luck is not a tactic. So as a police leader, you need to lobby your elected officials to give you the permission to do whatever is necessary when your day comes.

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Between the lines: Cops caught in the First Amendment war zone - Police News

Alexa Renee, KXTV 3:14 PM. PDT August 17, 2017

7. Sequoia and Kings Canyon National Park (Photo: TripAdvisor)

A right wing group has been granted legal permission through the National Parks Service to protest at Crissy Field in San Francisco.

The group, Patriot Prayer, obtained a "First Amendment" permit to be at the site Saturday, Aug. 26 from 2 p.m. to 5 p.m., according to KGO.

So what is a "First Amendment" permit?

Under federal law policy, the National Park Service (NPS) recognizes freedom of speech, press, religion, and public assembly, according to their website.

However, the agency also has an interest in protecting park resources and the public's use of parks, and is given the right to regulate events held on national parks. The NPS requires a permit establishing a date, time, location, number of participants and other details related to a First Amendment event.

The content of First Amendment activities doesn't need to reflect the NPS mission or views to be reviewed for a permit.

Each national park has its own set of details and rules for a permit but in general, a group of more than 25 people are required to apply for a permit to hold a First Amendment event.

Crissy Field is apark unit of the Golden Gate National Recreation Area. A First Amendment permit is required for use of the area if a group will have more than 25 people, is utilizing special equipment such as generators and tents, if the organizers would like priority use of the area and if the group is requesting an area not otherwise open to the public, according to the NPS.

While a First Amendment permit is free to apply for at Golden Gate Park, large groups require a Special Events permit application fee of $45 and a certificate of liability insurance for $1,000,000.

Permit costs are separate from application costs and can range from free to $40,000, according to the NPS.

Ten business days is the minimum amount of time required to review most permit applications but larger events may take more time.

Some sensitive areas could be restricted and at least one park ranger needs to be present during an event as well as when loading and unloading.

For more details about First Amendment permits at national parks go to http://www.nps.gov.

2017 KXTV-TV

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How groups use 'First Amendment' permits for protests at National Parks - ABC10

Common Dreams

Equality, Justice and the First Amendment Common Dreams The ACLU has represented or publicly supported Black Lives Matter activists in First Amendment matters at least five times in recent months. Our work against police agencies' surveillance of activists has been frequently in support of the Black Lives ... The ACLU Needs to Rethink Free SpeechNew York Times When free speech devolves into violence: Roy S. GuttermanSyracuse.com Judge Andrew Napolitano: Why hate speech is always protectedFox News Washington Post -Independent Journal Review all 100 news articles »

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Equality, Justice and the First Amendment - Common Dreams

BOWLING GREEN, Ky. (WBKO) -- Free speech always poses many questions.

Last weekend's violent protests have prompted an important conversation on free speech and peaceful assembly. Several history professors and the community are weighing in on the First Amendment.

"Congress shall make no law...abridging freedom of speech," says the United States Constitution.

"There are several limitations on free speech," explains Dr. Patti Minter, History professor at Western Kentucky University.

Freedom of speech is not protected under certain circumstances.

"You can't shout fire in a theater. And so that kind of idea and incitement to violence is not protected," says Tony Harkins, Associate history professor at Western Kentucky University.

The United States Courts state that right does not include, "the right to incite actions that would harm others."

The First Amendment also reads, "(Congress shall make no law abridging)...the right of the people peaceably to assemble."

"A group of neo-nazis and white supremacists can get a permit to march... to march peacefully," explains Dr. Minter.

Peacefully being the keyword here. However, footage from last weekend in Charlottesville indicates the peace was lost.

"A group came to terrorize, got a permit claiming that they were going to have a peaceful assembly, and they did not," says Dr. Minter.

Some may think that the First Amendment is protected on social media platforms.

"Well social media is very much a double edge sword," says Harkins.

The truth is our rights are not applicable here. Private organizations like Twitter or Facebook have the right to ban anyone or any group from their platforms based on their discretion

"Social media accelerates the view with which those views get shared," says Harkins.

Facebook CEO, Mark Zuckerberg, recently made a statement behind the company's decision to remove certain groups and comments, stating, "There is no place for hate in our community. That's why we've always taken down any post that promotes or celebrates hate crimes or acts of terrorism."

At the end of the day, the Bowling Green community says we need a little more of love and respect.

"The need for civility, for conversation, for understanding," says Harkins.

"While also being respectful," says Western freshman, Ania Lander.

The professors intend to use the current events in Charlottesville as a teaching lesson on the first amendment and also as it relates to history.

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Last weekend's violent protests prompt First Amendment conversation - WBKO

This article is part of a series on the Constitution of the United States of America Preamble and Articles of the Constitution

The First Amendment to the United States Constitution is a part of the United States Bill of Rights that protects freedom of speech, freedom of religion, freedom of assembly, freedom of the press, and right to petition.

The Establishment Clause does not allow the government to support one religion more than any other religion. The government also can not say that a religion or a god is true. This is often described as "separation of church and state", where "state" means "the government". It also does not allow the government to establish a national religion. It allows people to debate religion freely without the federal government of the United States getting involved. The clause did not stop the various states from supporting a particular religion, and several states did.

Congress shall make no law respecting an establishment 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 a redress of grievances.

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First Amendment to the United States Constitution - Simple ...

In November 2015, the Washington Metropolitan Area Transportation Authority (WMATA), operator of the Washington public transit (bus and Metro) system, amendedguidelines regarding commercial advertisements that it would accept for Metro cars and Metro stations. The guidelines contain 14 numbered restrictions, including these four:

Ostensibly applying these guidelines, WMATA made some rather peculiar decisions, refusing, for example, to accept advertisements from:

And, rather astonishingly, WMATA rejected an ACLU ad consisting of nothing but the text of the First Amendment (in English, Spanish and Arabic) alongside the ACLU logo (Guideline 9: intended to influence the public regarding an issue on which there are varying opinions (!!))

[The rejected ads can all be seen here.]

The ACLU recently filed suit on behalf of itself, Yiannopoulos, Carafem and PETA in D.C. federal district court arguing that the WMATA policy is a violation of the First Amendment both on its face and as applied to the plaintiffs. [The complaint is posted here.]*

Note * Apparently, the ACLU has taken some heat from its supporters for including Yiannopoulos as a co-plaintiff. That is unfortunate; the ACLUs habit of taking the position that speech even speech we might regard as offensive, from people we might regard as offensive is worthy of protection may be maddening at times, but it is a highly principled one, and is itself worthy of support and protection.

The plaintiffs, surely, have a strong case. On what possible grounds can WMATA defend rejecting an advertisement consisting of the text of the First Amendment? Who decides whether any particular issue is one on which there are varying opinions, and on what basis is that decision made? Why should PETAs non-commercial message (Dont eat meat) be prohibited while Burger Kings commercial message (Eat more meat)is allowed?

WMATA will undoubtedly rely heavily on Lehman v. City of Shaker Heights (1974), a case in which the Supreme Court upheld (5 to 4) a ban on all political advertising in the Shaker Heights transit system. The court there rejected the notion that the rail and bus cars constitute a public forum protected by the First Amendment with a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication.

The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car [advertising] space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.

The level of scrutiny such governmental action would receive would be low: the choices must simply be reasonable, and the policies and practices governing access to the transit systems advertising space must not be arbitrary, capricious, or invidious.

The ACLUs complaint argues that the guidelines constitute viewpoint discrimination of a kind that was not present in Lehmanallowing messages that reflect the AMAs (or the governments) views on health-related matters, or those that reflectcommercialpositions on industry goals, while rejecting advertisements reflecting other viewpoints requires the court to engage in a more exacting First Amendment analysis.

They may well succeed in that argument. Even if they dont, though, its hard to see a a court upholding WMATAs decision here even under the relaxed reasonableness standard. To my eye, these certainly do look like the kind of arbitrary, capricious, or invidious decisions that, even under a generous reading of Lehman,WMATA, as a state actor, has to steer clear of.

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First Amendment banned from DC Metro literally! - Washington Post

Piers Morgan is at it again:

Morgan is echoing an idea that has been advanced repeatedly in the last couple of days: To wit, that there is something particular about Nazism that makes it ineligible for protection under the Bill of Rights. This is flat-out wrong. And, more than that, its dangerous. Abhorrent and ugly as they invariably are, there simply is no exception to the First Amendment that exempts Nazis, white supremacists, KKK members, Soviet apologists, or anyone else who harbors disgraceful or illiberal views. As the courts have made abundantly clear, the rules are the same for ghastly little plonkers such as Richard Spencer as they are for William Shakespeare. If that werent true, the First Amendment would be pointless.

This is not a controversial statement. It is not an interesting view. It is not a contrarian contribution to an intractable grey area. It is a fact. There are a handful of limits to free speech in the United States, and all of them are exceptions of form rather than of viewpoint. Heres Eugene Volokh to explain that further:

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with hate speech in any conventionally used sense of the term. For instance, there is an exception for fighting words face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.

. . .

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because hes black (or white), or intentionally inciting someone to a likely and immediate attack on someone because hes Muslim (or Christian or Jewish), can be made a crime. But this isnt because its hate speech; its because its illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speakers ex-girlfriend.

Under the doctrine laid out by a unanimous Supreme Court in the seminal Brandenburg v. Ohio decision, incitement to imminent lawless action may in some circumstances be prosecuted. But this rule is universal and narrow, and, crucially, is in no way akin to the sort of hate speech exceptions that obtain in every other country, and that so many Americans seem to believe exist here too. Under U.S. law it is legal for a speaker to say broadly that all the Jews should be killed or that it is time for a revolution, or that slavery is good, and it is not legal for a speaker to say to a crowd, lets all go and kill that guy wearing the yarmulke, or meet me in an hour at the armory and well start our insurrection at the Post Office, or look at that black guy over there in the blue t-shirt, lets chain him to my car.Who is saying these things, however, does not matter in the slightest. Whether one likes it or not, Brandenburg applies as much to neo-Nazis as to the Amish, as consistently to Old Testament preachers as to gay rights activists, and as broadly to my mother as to David Duke. It applies in exactly the same way to good people, to bad people, and to those in between.

It is, in other words, a principle a principle that cannot be obviated by cynical word games or by thinly disguised special pleading. I believe in free speech, but or I just dont think this is a free speech issue both popular lines at the moment simply will not cut it as arguments. On the contrary. In reality, all that the but and the I just dont think mean is that the speaker hopes to exempt certain people because he doesnt like them. But one can no more get away from ones inconsistencies by saying its not a speech issue to me than one can get away from the charge that one is unreliable on due process insisting in certain cases, well, thats not a due process issue to me. This is a free speech issue. Those who wish it werent just trying to have it both ways to argue bluntly for censorship, and then to pretend that they arent.

Leaving aside that the Supreme Court has been extremely clear on this matter, time and time again (inter alia, see: Brandenburg v. Ohio, R.A.V. v. City of St. Paul, Matal v. Tam),it seems obvious as a philosophical matter that any robust free speech protections will have to be assiduously neutral if they are to be useful at all. The purpose of the First Amendment is to deprive the government of the capacity to determine at the point of a bayonet what is true, and what is not; what is good, and what is not; what is acceptable to the ruling class, and what is not. To accept this arrangement is not to suggest that one thinks the Nazis might have a point, or to imply that one believes that we need the Bill of Rights in case Richard Spencers race science turns out to be true. And, however rhetorically effective it might be to pretend otherwise,it is in no way to defend those people. Rather, it is to propose that the only effective way of preventing governmental abuses is to take away its oversight of viewpoints in toto. Moreover, it isto submit that, having been born with ahost of unalienable rights, free human beings are not obliged to ask their employees in the government for permission to speak their minds.

In a country such as this one, that means that disgusting reprobates such as those who marched in Charlottesville will be beyond the reach of the state at least until they go beyond speech and into the realm of action (which does not include carrying a torch or a flag or wearing a t-shirt, but certainly does include driving a car into another human being). Is that distressing? Yes, it is. Had I been in Charlottesville at the weekend,Id no doubt have been even more appalled than I was watching it on television.But the salient question is not whether the status quo can be upsetting, but whether it is better than the alternative. Piers Morgan believes that If America doesnt wake up to the fact that what these Nazis did in Charlottesville is not free speech . . . it is in deep trouble. It seems obvious to me that the precise opposite is true. No free speech for fascists is an incoherent, almost Orwellian, position.Happily andon a routinelybipartisan basis the Supreme Court concurs.

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Piers Morgan is at it again - National Review

SOUTHERN INDIANA With the recent events in Charlottesville, many Americans are asking themselves: Does the first amendment protect all forms of speech?

According to Ted Walton, lawyer and partner at Clay Daniel Walton Adams, a law firm in Louisville, the First Amendment protections for the freedom of speech are wide and do include speech that is distasteful, offensive and hateful.

There is no hate speech exception to the First Amendment and in fact thats been reaffirmed by the Supreme Court very recently in an interesting case, Walton said.

That case, which was heard by the court earlier just this year, was Matal, Interim Director, United States Patent and Trademark Office vs. Tam, in which the Supreme Court unanimously ruled that an Asian-American band The Slants was legally allowed to trademark its name despite its potentially offensive nature.

This Supreme Court has really championed First Amendment rights and youve seen that with things like the campaign finance rulings that theyve passed," said Rhonda Wrzenski, associate professor of political science at Indiana University Southeast. "Theres been other rulings too where theyve allowed groups that werent necessarily popular to have more speech rights. So typically they make exceptions to the speech rights, theyve banned obscenities, defamations, inciting violence. Basically, threats.

Walton explained that, legally speaking, the First Amendment doesnt protect verbal acts

If you are using words in such a way that its directed at a particular person and meant to incite someone and beat somebody up, that can be a criminal act, Walton said.

Yelling Fire! in a crowded theater is a verbal act and intentionally creates a hazardous situation and is not protected by the First Amendment, according to Walton

Thats the dichotomy," Walton said. "You have folks that are standing up and saying they hate these groups [of people]. Its going to be protected speech. But if people are saying lets go drive a car into this group and somebody drives a car into that group, that person is not going to have First Amendment protection."

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FIRST AMENDMENT: How far does it go? - Evening News and Tribune

Pittsburgh city officials said they're preparing public safety resources in light of planned right-wing protests Saturday at several Google sites across the country, including the companys Bakery Square location.

The march is being promoted as a response to Google's firing of engineer James Damore, who was terminated earlier this month over an internal workplace memo some considered hostile to the tech company's diversity efforts.

Self-described "new right" activist Jack Posobiec, who pushed the "PizzaGate" conspiracy theory, called for the protests before last weekend's clashes between alt-right demonstrators and counter-protestors in Charlottesville, Va. But the fallout from that event has drawn closer attention to subsequent planned events by far-right leaning groups.

On the Google marchs website, Posobiec said the protest is not an alt-right event, describing it instead as a "First Amendment" demonstration. He also issued a statement condemning violence in the wake of the Charlottesville unrest. Posobiec also posted a code of conduct for the marches Monday, which disavows violence and all groups that espouse it such as White Nationalists [and] KKK.

In a statement issued Monday night, Mayor BillPeduto said no permits for the protest have been requested or issued, but that public safety resources will be present if it does take place. He said that social media and intelligence reports regarding the protest are being monitored.

As Pittsburghers, we have zero tolerance for violence or hatred, and we will do everything in our power to keep our city's residents safe, Peduto said in his statement. While we must respect First Amendment rights, let me be clear: those spreading hate, fear and violence are not welcome in our city."

The website Infowarshad planned on holding an event surrounding the Google march, but it has been cancelled due to threats on a Facebook event page. Infowars is headed by longtime conspiracy theorist and propagator Alex Jones. A segment entitled "Flyover America," was slated to live stream interviews with protestors, but the Pittsburgh event page was flooded with nearly 100 negative comments from residents telling them to stay out of the city. Some comments included threats.

"I removed and cancelled the event, and I am not going," said Infowars' Millie Weaver in a Facebook video.

At least one counter-protest effort is in the works. A planning meeting will be held Tuesday evening.

(Photo Credit: Kezee/Flickr)

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Pittsburgh Prepares For March On Google By Self-Proclaimed First Amendment Supporters - 90.5 WESA

MarketWatch

Why the First Amendment won't protect Charlottesville white supremacists from being fired MarketWatch But the First Amendment, which prohibits the government from interfering in the free exercise of speech and religion, does not protect employees who make statements or donations in favor of causes their employers disagree with from being fired, said ...

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Why the First Amendment won't protect Charlottesville white supremacists from being fired - MarketWatch

The First Amendment protects the speech we hate to hear.

Hard as it is to accept, the right to express vile and repugnant thought is guarded by the Constitution. Of course, theres no right to smash a car into others who have gathered to express alternative opinions. But its the job of elected officials and law enforcement to protect both the purveyors of ugly language and those who gather to protest it.

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Thats reality for Governor Charlie Baker and Mayor Marty Walsh. Bracing for a free speech rally that might take place Saturday on Boston Common, on Monday they held a joint press conference to send the message that while Boston, the cradle of liberty, recognizes free speech, they really hope the haters choose another time and place to exercise their rights.

They are right to be disgusted by the weekend rally in Charlottesville, Va., which was organized by white supremacists and neo-Nazis. They are right to denounce their gospel of bigotry and hatred and the domestic terrorism it spawned. James Alex Fields Jr. of Ohio, 20 years old, allegedly smashed his car into people who were protesting the nationalist rally, killing Heather Heyer, 32, and injuring at least 19 others. Thats criminal, and theres no First Amendment protection for that.

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But trying to ban a Boston gathering undermines an underlying precept of our democracy. A corporation like Google can set the parameters of permitted speech in its workspace. Organizers of the St. Patricks Day parade can legally exclude a gay veterans group. But government cant restrict speech just because it sickens or offends others.

I dont want them here, we dont need them here, theres no reason to be here, said Walsh, about a rally planned by a mystery group whose organizers say they have nothing to do with the organizers behind the Charlottesville rally. Freedom of speech isnt about racist remarks and division, the mayor added.

Unfortunately, the mayor has it backwards. Constitutional protection is not needed so much for someone saying, I like you, said lawyer Harvey Silverglate, a staunch defender of First Amendment rights. But it assuredly is needed to protect someone who says, I hate you.

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Just last June, the Supreme Court unanimously reaffirmed what it called a bedrock principle: Speech may not be banned on the ground that it expresses ideas that offend. In a case which upheld the right of a band called The Slants to trademark its racially offensive name, Justice Samuel Alito 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.

When it comes to neo-Nazis, the right to promote their twisted thinking goes back to the 1977 case Nationalist Socialist Party of America v. Village of Skokie. Organizers who described their group as a Nazi organization wanted to march through the streets of Skokie, Ill., which was at the time a village where over half the residents were Jewish, somesurvivors of Nazi concentration camps. The residents of Skokie argued the march would incite or promote hatred against persons of Jewish faith or ancestry. In the end, the Supreme Court upheld the Nazis right to march with swastikas, on the grounds that promoting religious hatred is not a reason for suppressing speech.

We can and should speak up against hate. As the Supreme Court makes clear, theres no hate speech exception to the First Amendment. With that freedom comes a heavy burden for government officials like Baker and Walsh, who must try to keep protected speech from turning into acts of violence.

Originally posted here:

There's no hate speech exception to the First Amendment - The Boston Globe

On Friday, August 11, I traveled to Charlottesville, Virginia to attend my co-clerks wedding. I was generally familiar with the controversy over the removal of the Robert E. Lee statue, but was not aware that white supremacist demonstrations were scheduled for the weekend. After the rehearsal dinner wrapped, I drove back to the hotel along Main Street. As we approached the Rotundathe center of the campus designed by Thomas Jefferson himselfthe traffic ahead suddenly slowed to a crawl. In the distance, we saw some lights. At first glance, it appeared to be a candlelight vigil, but we quickly realized what was going on. Hundreds of white nationalists with torches were walking down the steps of the Rotunda, chanting something incoherent, though the word Jews was distinctly pronounced. The sight was surreal; I was more stunned than afraid.

Our hotel was a few blocks away. We drove back to the room, and checked #Charlottesville on Twitter to see what was going on. Moments earlier, the police had declared the gathering an unlawful assembly, and broke it up. (Some reports suggest pepper spray was fired).

This scene, however, was but a mere prelude. Saturday at noon, the Nazis planned to assemble at Emancipation Park, formerly known as Lee Park, to protest the removal of the Lee statue. Unsure of what would happen, we decided to spend the day out of town at Montpelier, the estate of James Madison. There was a strange aspect of visiting the home of the primary author of the First Amendment, while miles away, that same First Amendment was enabling contemptible bigots to inflict violence and, tragically, the loss of life.

The Battle of Charlottesville will be studied in many quarters for many years, but this early entry will focus on the role played by the First Amendment.

Kessler v. City of Charlottesville

On May 30, Jason Kessler applied for a permit to hold a rally on August 12 in Emancipation Park. According to his attorneys at the ACLU and the Rutherford Institute, he chose that location because the Plaintiff wishes to communicate a message that relates directly to the Parkspecifically, his opposition to the Citys decisions to rename the Park, which was previously known as Lee Park, and its plans to remove a statue of Robert E. Lee from the Park. (I have been quite critical of the ACLU for its caving on certain free speech issues, but here, and with its defense of Milo Yiannopoulos, the organization is staying true to its historic mission). Kessler estimated that 400 people would attend, and stated that he absolutely intends to have a peaceful rally and his group would avoid violence. Initially, the City of Charlottesville granted Kesslers application, and also those of other counter-protestors. After the application was granted, however, business leaders in Charlottesville urged that the rally be moved to McIntire Park, which was a mile away. McIntire Park is much larger and has far fewer entrances. Thetopic was also discussed at City Council meetings. Members of the Council spoke out against the white supremacists on social media.

On August 7, the City revoked Kesslers permit, modif[ying] the application to allow a rally in the larger McIntire Park. The city cited safety concerns based on the number of people who were expected to attend Kesslers rally. Specifically, the government explained that holding a large rally at Emancipation Park poses an unacceptable danger to public order and safety. No sources were provided to justify those concerns that had come to the Citys attention. The government cited conservative estimates of no less than 1,000, with as many as 2,000 or more counter-demonstrators in attendance based on internet-based marketing efforts by the Plaintiffs. While Kesslers permit was revoked, the city did not revoke the permits of the counter-protestors, who were still approved to rally within blocks of Emancipation Park.

On August 10, Kessler sought a preliminary injunction in the U.S. District Court for the Western District of Virginia, barring the City from revoking the permit to protest in Lee Park. The motion stated that the City will suffer no harm to its legitimate interests if preliminary relief is granted. Regardless of where the demonstration takes place, the City has an obligation to secure and protect the safety of the demonstrators and the public. The lawyers added that [t]he City's expressed desire to provide security and protection at an alternative site because it would be easier to do so . . . is not a sufficiently substantial governmental interest to override Plaintiff's First Amendment right.

The following day, the City of Charlottesville filed a brief in opposition to Kesslers motion for a preliminary injunction. The government argued that the decision to move the plaintiffs protest from Emancipation Park to McIntire Park was justified without reference to speech content or the Plaintiffs viewpoint, [] was narrowly tailored to serve a significant governmental interest, and [] left open ample alternative channels for communication. The government added that Kesslers complaint does not contain sufficient allegations to support a claim that the City and Mr. Jones were motivated by fears about how counter-protesters will respond to the Plaintiffs rally.

The judiciary would disagree. After a hearing, on the evening of Friday August 11, Judge Glen E. Conrad issued a preliminary injunction, requiring the City of Charlottesville to allow the white supremacists to assemble in Emancipation Park. (The federal courthouse is about three blocks from that park). The court dismissed the governments speculation about the crowd size, concluding that there is no evidence to support the notion that many thousands of individuals are likely to attend the demonstration. Crucial to Judge Conrads analysis was the fact that Kesslers permit was revoked, but the permits of the counter-protestors were not:

The disparity in treatment between the two groups with opposing views suggests that the defendants' decision to revoke Kessler's permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him. This conclusion is bolstered by other evidence, including communications on social media indicating that members of City Council oppose Kessler's political viewpoint.

Leave aside for now the significance of the court looking to statements on social media by members of government that conflict with the Citys official position to find animus. The courts analysis focused exclusively on the irreparable harm that would be faced by Kessler. There was scant mention of the possible harms to public safety. The closest the court came to addressing this point was noting that a change in the location of the demonstration would not eliminate the need for members of the City's law enforcement, fire, and emergency medical services personnel to appear at Emancipation Park. Instead, it would necessitate having personnel present at two locations in the City. But beyond these sentiments, the opinion hinged almost entirely on the fact that the plaintiffs were likely to succeed on the merits.

Free Speech on the Grounds

In hindsight, the value of the protestors speech was minimal; the cost to public safety was tragic. Shortly after Judge Conrads ruling was issued, the torch-lit demonstration began at the Rotunda. Many were injured as torches and other projectiles were thrown. Roughly twelve hours later, the riots would commence at Emancipation Park. It is rare that a judicial decision can have such an immediate and palpable effect on both public safety and individual liberty.

By the end of the horrific day, there were more than three-dozen injuries. Heather D. Heyer was murdered. Two Virginia State troopers died when their helicopter crashed outside of Charlottesville. (I observed the helicopter hovering over Emancipation park throughout the day). Shortly after the violence began, the Mayor of Charlottesville tweeted, For all watching events in crowded, downtown Cville: this is EXACTLY why City tried to change venue to McIntire-but court wouldnt allow. Had the protest been held at the larger McIntire park, perhaps the police could have kept a stronger control on crowd size, and automobile traffic. Perhaps not.

As a matter of First Amendment law, Judge Conrads opinion is correct. The Citys decision to revoke the plaintiffs permit, but not those of the counter-protestors, gave rise to a very strong presumption that the decision was made based on the content of the nationalists speech. My understanding is that the City merely overlooked revoking the other permits. This blunder, however, provided the basis of the courts decision.

Moreover, there was no concrete evidence that the crowd size would increase, beyond the speculation based on social media traffic. Merely asserting a generalized interest in safety, without more, cannot justify the revocation of the permit in this manner. Indeed, had the permit never been granted in the first place, the City could have avoided the presumption of animus against the plaintiffs bigoted speech. Much attention will be paid to how the Charlottesville Police Department managed the affair. The Citys attorneys also deserve some scrutiny. Had the case been lawyered better from the outset, the analysis would be much closer. If the government could have shown that in the larger park, traffic could have been better cordoned off, the requisite scrutiny may have been met. But here we are.

The Social Costs of the Bill of Rights

The constitutional questions here are difficult and complex. As usual, Justice Robert H. Jackson stated the issue far better than I possibly could. Here is an excerpt from his iconic dissent in very apt case of Terminello v. Chicago:

[U]nderneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society's need for public order. . . .

But if we maintain a general policy of free speaking, we must recognize that its inevitable consequence will be sporadic local outbreaks of violence, for it is the nature of men to be intolerant of attacks upon institutions, personalities and ideas for which they really care. In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty is made more secure by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty and that the factions engaged in this battle are not interested permanently in either. . . .

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The Battle of Charlottesville illustrates, once again, the social costs imposed by the Bill of Rights.

The rest is here:

The First Amendment on the Grounds in Charlottesville - Lawfare (blog)

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry

In the wake of the tragic events this past weekend in Charlottesville, a number of the white supremacists protesting have been identified and outed by social media and then subsequently fired from their employment.

One issue that has arisen is the argument that these individuals have a First Amendment right to speak their minds, however wrong they may be, and to not suffer negative consequences. That is not true. The First Amendment offers almost zero protection for individuals who engage in hate or other inappropriate speech who are then fired from private sector employment.

There are very limited forms of protection for federal and public sector employees under the First Amendment only because the government implements employment actions. Generally, a government employee must be engaging in speech that is considered a matter of public concern to receive some protection.

That protection can be taken away if it interferes with the function of a government agency. In our experience, a public sector employer might need to take additional steps but can usually find ways to fire a public employee for engaging in hate speech.

In sum, not much has changed since the 1892 case McAuliffe v. Mayor of New Bedford in the Supreme Court of Massachusetts when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.

First Amendment

The First Amendment provides the following rights:

Congress shall make no law respecting an establishment 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 a redress of grievances.

The First Amendment protects private individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech. For instance, there is no First Amendment issue with social media companies selectively banning users from their platform based on their speech. There could be a First Amendment issue if a government entity made a similar type of decision based on speech.

State Laws

Some states, but not Virginia, have offered state legislation that protects employees from being terminated for legal, off-duty speech that does not conflict with the employers business-related interests.

States of note that offer this minimal protection include California, New York, Colorado, North Dakota and Montana. Even under these laws, it would be relatively easy for an employer to establish that off-duty hate speech interferes with an employers business interests (e.g., boycotts). In short, there is no true legal protection for hate speech for private employees in these states.

Recent Issues Relating to the Charlottesville Tragedy

These issues have arisen principally as a result of the identification of far-right protesters by various social media groups that have identified hate-speech protesters and then contacted their employers, schools, and friends.

The principal group that has engaged in this tactic is the Twitter account, YesYoureRacist. The group has apparently had success in convincing employers to terminate employees based on their participation in the Charlottesville protest.

Obviously, employers would much rather terminate an employee involved in free speech than face the consequences of a boycott. Can they do so? Yes, they can. Why? Because the First Amendment protects the right of people engaging in hate speech, but it also protects their employers who do not wish to be associated with them.

As such, First Amendment rights go both ways. Free speech protects the ability of citizens to speak and engage in other forms of hate speech without the government banning it. However, it does not protect individuals who engage in hate speech from the consequences of their actions. In other words, there should be no misconception that the Constitution provides a First Amendment right to engage in hate speech and not suffer the potential consequences of being fired for that very speech.

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Legal Insider: Does the First Amendment Protect Hate Speech and ... - ARL now