Does The First Amendment Protect Far-Right Demonstrators?

Aug 16, 2017


The violence at a far-right rally in Virginia over the weekend and a potential rally in Boston on Saturday are raising questions about hate speech, and whether it is protected under the First Amendment, which also protects the right to assemble. 

In a press conference denouncing groups like the Ku Klux Klan and the Nazi party, Boston Mayor Marty Walsh said the city will do everything in its power to keep hate out of the city.

But Roger Williams University constitutional law professor Jared Goldstein says any people – including Nazis -- are technically free to gather anywhere.

“There is no question under U.S. law that hate speech is protected speech as long as it doesn’t incite immediate violence,” Goldstein said.

According to Goldstein, what counts as immediate violence is narrowly defined.

“For instance, if you’re standing in front of an angry crowd and you say, ‘Let’s burn down the Capitol Building.’ Well, that wouldn’t be protected,” Goldstein explained. “But if you said, ‘I think violence is a good idea in the cause that we’re fighting for.’ That actually would be protected.”

Unless actual violence is about to break out, Goldstein said law enforcement can’t step in, even if a demonstration attracts speakers with extreme or unpopular views.

”If there’s an angry crowd yelling at a speaker, the police don’t have the right to shut down the speaker just because there’s an angry crowd there,” Goldstein said.

To explain how courts have interpreted the First Amendment, Goldstein cites a U.S. Supreme Court case from the 1970s involving a self-proclaimed neo-Nazi group that wanted to march through a predominantly Jewish neighborhood in Illinois, wearing swastikas. The court ruled the march could take place, even though residents argued it would constitute an act of aggression, particularly for Holocaust survivors living in the area. 

Rhode Island’s Executive Director of the American Civil Liberties Union Steven Brown cites another First Amendment case from the 1940s, also out of Illinois, involving a fascist, “who was giving a rather inflammatory speech in Chicago,” Brown said.

People who went to protest the speech, engaged in violent activity, and the city charged the speaker for inciting a riot.

“The Supreme Court overturned that conviction and said it is simply not appropriate under the First Amendment to punish someone for the speech based on what other illegal activity other people engaged in,” explained Brown.

This decision was later used in the 1960s to protect Martin Luther King Jr. and those marching for civil rights.

“Officials in Alabama said, ‘We don’t want them to march because we’re afraid that other people might engage in violence against them,’” Brown said.

As he sees it, the First Amendment boils down to protection from censorship by the government.

“You don’t need protection for speech that doesn’t offend people,” Brown said.