Is White Supremacy Protected By Freedom Of Speech? The First Amendment Says Yes
The white supremacist rally in Charlottesville, Virginia on Aug. 12 has reinvigorated a debate over what is protected speech and what is not in the United States. After hundreds of mostly white, mostly male protesters descended upon the Virginia college town, chanting Nazi slogans, waving Confederate and Nazi flags, and shouting slurs, many are wondering: does the First Amendment protect white supremacy?
The short answer: yes.
The First Amendment to the U.S. Constitution quite clearly states (emphasis added),
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.
In other words: the government cannot prevent an individual from exercising their right to free speech.
This does have limitations, however. For instance: the First Amendment does not protect knowingly false speech, such as libel or slander, speech that incites "actions that would harm others," or obscene language as defined by the Miller test.
But hate speech? Go for it, Nazis.
In countries like France and Germany, hate speech can net you not only huge fines, but also jail time. (In fact, Germany just cited an American tourist for giving a Nazi salute.) Canada, Mexico, and many others have hate speech laws on the books. Why doesn't the U.S.?
Hate speech is quite fiercely -- and infamously -- protected in the U.S., a precedent set by the 1927 decision Whitney v. California, which determined that all speech is protected, lest there "be reasonable ground to fear that serious evil will result if free speech is practiced."
That precedent was most recently reaffirmed by 2017's Matal v. Tams (also known as "the Slants case"). The majority opinion of the case states,
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."
Even left-leaning advocacy group American Civil Liberties Union (ACLU) advocates for absolute free speech: They've recently come under fire for filing suit against the Washington, D.C. Metro on behalf of professional troll Milo Yiannopoulos.
Therefore, none of the individuals who shouted slurs or chanted Nazi slogans in Charlottesville this weekend can legally be censored — by the government, anyway.
That's not to say that there aren't consequences to spewing hate speech.
In the hours following both Virginia rallies, many took to social media to identify and publicly shame the white supremacists who were photographed. Several have been fired. One has been publicly disowned by his own family.
On Aug. 14, Nazi website The Daily Stormer was kicked off of GoDaddy for a hateful article about Heather Heyer, who died in this weekend's violence. When the neo-Nazi site tried to transfer its domain to Google services, Google followed suit.
This seems to be a major sticking point for Nazis who have been doxxed in the days following the deadly gathering. Several have claimed their First Amendment rights are being trampled on, but that's just not true. While government interference in what one can and cannot say is strictly verboten, private enterprises can do as they please, and there's nothing in the good ol' Constitution that prevents these identified white supremacists from being criticized and mocked.
Now, whether or not the events of this past weekend fall under speech that incites actions that could harm others is another question all together.
After all, one woman died and numerous others were injured protesting the rally.
Heather Heyer, one of the anti-racist counterprotesters at the Charlottesville rally on Aug. 12, was killed when a car, driven by a 20-year-old man who had attended the "Unite the Right" rally plowed into a crowd of people. More than a dozen others were injured in the same attack. 20-year-old Deandre Harris was beaten with poles by a group of white supremacists on the same day.
It seems pretty clear that this is no longer speech, but violence.
Let's circle back around to the Whitney v. California decision, because there's some interesting language in the 1927 court case's majority opinion:
to justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. [...] There must be reasonable ground to believe that the danger apprehended is imminent.
So, is this the level at which danger is imminent? History will have to make that call for us.