Letting racists rally & speak
This weekend in Charlottesville, America witnessed Unite the Right rally participants bearing torches, Confederate flags, swastikas and insignia-type shields; some wore dark gray helmets. The almost exclusively white male marchers chanted, “You will not replace us” and “Jews will not replace us.”
In the wake of the attention their rally received and the violence unleashed, emboldened organizers appear eager to stage more events and to amplify their message.
This presents those of us who believe in free speech and are repulsed by the alt-right message with a challenge and an opportunity. We must actively counter the racism and anti-Semitism on display. But we must allow those spouting hate to march and speak freely, provided they are peaceful.
The catalyst for the rally was the proposed removal of a statue memorializing Robert E. Lee, but the coalition of white supremacists, neo-Nazis, Ku Klux Klan members and white nationalist groups were attempting to unite and spread a series of broader, bigoted messages.
On Saturday, events got got out of control with many instances of violence. Most tragically, of course, a car driven by a rally participant drove his automobile into the crowd of counterprotesters, killing 32-year-old Heather Heyer and injuring 19 other people.
So, what lessons can we take from Charlottesville and the history of America’s response to demonstrations concerning freedom, justice and equality issues that we, as a nation, have faced before?
Lesson one: We must remember the importance of the free speech provision of the First Amendment to the Constitution. It protects expression that is unpopular, controversial, repugnant, wrongheaded, and, yes, even, hate and bigoted speech.
Renewed calls for more criminal hate speech legislation — such as Gov. Cuomo’s push to increase penalties on certain forms of hate-based incitement to riot — may be well-intentioned, but they are misguided, misdirected and constitutionally suspect.
The Unite the Right rally participants have the right to carry those historically repulsive torches, wear offensive uniforms, engage in bigoted expressions and call for the preservation of Confederate statues. In an open-carry state like Virginia, they have a right to wield weapons in public, too.
They do not have the right to engage in any illegal or discriminatory conduct. The lesson is very clear: Speech is generally protected, but conduct is not.
Lesson two: When provocative groups bring out others opposed to their message, political leaders and law enforcement officials need to prepare and train for possible confrontations.
Opposition groups have the same First Amendment rights to counterdemonstrate. But they, too, cannot engage in illegal conduct.
If both groups engage in violence, fighting each other, the offenders on each side should be arrested and prosecuted, allowing, of course, for self-defense claims.
A historical lesson here is that law enforcement officials need to enact plans in advance of the rally that include methods of separating the antagonistic groups.
It is not an infringement on free speech to have a reasonable buffer zone between groups that are hostile to each other.
In New York, to the Police Department’s credit, we have learned that you separate the pro-Castro from the anti-Castro groups, the pro-life from the pro-choice Bill Bramhall is away today. groups, the LGBT parade from the antiLGBT group. You separate them with police officers standing between them or creating First Amendment zones (with wooden or metal barriers if necessary) for each group.
Video footage and reported personal observations reveal that the lesson of separation was not adhered to adequately in Charlottesville. To prevent violence, local and state police, and if necessary, the National Guard, need to be trained to separate hostile groups.
There’s a powerful temptation for government to shut down Nazi and Confederate demonstrations, or for opposition groups to confront them with force. Resist it.
We need to remember who we are as a nation and let the principles and values of the First Amendment, as interpreted by our judiciary, provide the road map to better handle these unfortunate, very difficult and racially and politically tense events.
We need to do all we can to make sure what happened in Charlottesville is not repeated.