Actually, white nationalist speech is protected under the First Amendment, as is all “hate speech,” because there’s no such thing as “hate speech” in U.S. constitutional jurisprudence. How many primers on free-speech law need to be posted on the Internet before people absorb this very basic fact? I’m less annoyed at Patrisse Cullors, who’s obviously pushing this lie as part of a political agenda, than I am at Katy Tur, who views her profession through a heroic lens and is ostensibly there to fact-check. If someone’s spouting misinformation about the First Amendment (of all things) right in front of you, the journamalistical thing to do might be to kindly correct the record for the benefit of your audience. Does Tur not know basic 1A law despite the fact that her job depends on it? Or is she giving Cullors a pass because she supports her agenda?
Speaking of novel interpretations of First Amendment law, Hugh Hewitt has a corker of an idea about what went down in Charlottesville this weekend:
All law students taking a First Amendment course, or even a constitutional law survey course, learn the rule of Brandenburg v. Ohio, a case that grew out of a 1964 Ku Klux Klan rally near Cincinnati. The defendant, Clarence Brandenburg, was convicted under a Buckeye State statute aimed originally at criminalizing communist conduct. Five years later, when the case found its way to the Supreme Court, the per curiam opinion struck down the Ohio law, holding “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”…
From far away in California, and after a day of air travel during which I observed the events in Charlottesville only in bits and pieces, in snatches online and two minute reports from gates, it seems to me that a great number of people are at risk of being charged with felony homicide beyond the driver of the car that killed one person during Saturday’s protests. Anyone who incited the driver, indeed anyone whose actions obliged the state troopers to be airborne in defense of the public’s safety, should lawyer up.
“Lots of people should be charged if they contributed to the mayhem that led to these deaths,” Hewitt argues. That’s … quite an expansive concept of “incitement” with potentially draconian consequences. A traditional example of incitement is when a speaker is whipping up a mob that’s assembled against some poor bastard and says, e.g., “Let’s lynch him!” Even if the speaker doesn’t participate in the lynching, he can be charged criminally under the Brandenburg test that Hewitt cites since his advocacy was aimed at inciting imminent lawless action and was likely to produce it. The First Amendment won’t protect him.
As I read Hewitt, he wants to extend that exception to virtually anyone who participated in the protests — or counter-protests! — in Charlottesville on Saturday regardless of anything specific that they might have said. He’s not drawing the line at someone whispering in James Fields’s ear that he should take out a bunch of progressives with his car. A neo-Nazi/antifa showdown contains a high enough risk of violence, he seems to be saying, that participating and saying anything that raises the antagonism between the groups may qualify as incitement — and, by extension, felony murder due to Fields’s actions. Imagine showing up at a rally to yell F-bombs at some Nazis, watching a bunch of people get run over by a crazed white supremacist, and then finding yourself facing a murder charge. Or, to take a harder example, imagine being a white nationalist who attends the rally with every intention of behaving peacefully and hoping that everyone else behaves that way too. Should that guy face a murder charge for Fields’s actions? Does it matter if he was shouting expletives at antifa? The whole point of the Brandenburg test is to make the circumstances under which someone can be legally charged with incitement very narrow. This doesn’t feel narrow. In practice, it would might amount to a de facto hate-speech exception to the First Amendment. If you’re spouting “hate” around someone who shares your attitude and goes on to commit a crime, you’re doing hard time potentially.
I don’t know what to make of the idea that people might be charged for the two police officers’ deaths in the helicopter crash either. The crash was an accident, as far as we know. They were flying around doing crowd control, watching for violence on the ground. How would you begin to go about figuring out who’s guilty of incitement and who’s not in a helicopter crash? If participants are on the hook for felony murder whenever they attend a protest that’s opposed by counter-protesters, raising the risk of violence, I don’t know how anyone could ever safely attend on either side. By showing up you’d be gambling your liberty on the hope that no crimes are committed by anyone else in attendance, whether you have anything to do with them or not.
Here’s the clip via the Free Beacon.