Even ‘hate speech’ has backing of court system
Law upholds flag burning to funeral demonstrations
The white supremacists and neo-Nazis who marched through Charlottesville, Va., last week have the Supreme Court on their side.
In a series of cases dating back to the 1960s, the high court has struck down restrictions on “hate speech” unless it specifically incites violence or is intended to do so.
The First Amendment, the justices said, protected a Ku Klux Klan member decrying Jews and blacks in Ohio in 1969. It protected neo-Nazis seeking to march through heavily Jewish Skokie, Ill., in 1977. It protected a U.S. flag burner from Texas in 1989, three cross burners from Virginia in 2003 and anti-gay funeral protesters in 2011.
Two months ago, the high court ruled unanimously that even derogatory trademarks deserve First Amendment protection — a victory for an Asian-American rock band dubbed The Slants as well as the Washington Redskins.
You wouldn’t know it from the public condemnation that has followed the events in Charlottesville.
Faced with the racist and antiSemitic speeches and symbols of the marchers, the violence that resulted and President Trump’s equivocal denunciation of “all sides,” Republican as well as Democratic officials said the groups should not be welcomed anywhere.
Ah, but they are — by virtue of Supreme Court precedent.
“I don’t quarrel with the president’s recognition that people had a right to march,” said Burt Neuborne, a professor of civil lib-
erties at New York University School of Law who represented Ku Klux Klan members and others as an American Civil Liberties Union lawyer. “This is a time to distinguish legal rights from moral condemnation.”
With rare exceptions, the Supreme Court has protected the free speech rights of even those bearing reprehensible messages. In National Socialist Party of America v. Village of
Skokie, it didn’t fault neo-Nazis who targeted a Chicago suburb inhabited by Holocaust survivors. In Snyder v. Phelps, it let protesters interrupt a fallen Marine’s funeral by shouting anti-gay slurs.
The First Amendment also protected civil rights protesters in the 1950s, noted Lee Rowland, a senior staff attorney with the ACLU’s speech, privacy and technology project.
“Up until the point where there is an actual and credible security threat at a particular event, we all should be cautious before we give the government the power to silence speech based on a guilt-by-association theory,” she said. “That power could be wielded against any of us.”
That’s the risk in Europe and other courts across the globe, where speech designed to threaten or stir up hatred is not protected, said Neuborne’s NYU colleague Jeremy Waldron, who teaches legal and political philosophy at the law school. He said local governments should be able to block protests like the one in Charlottesville.
There is a growing consensus that “this march should not have been permitted to proceed,” Waldron said. “It‘s the stirring up of hatred rather than the expression of hatred that’s important.”