This week, after a white nationalist rally in Charlottesville, Virginia, turned deadly, California lawmakers called on the National Park Service to revoke a permit it had issued for a white-supremacist rally in a Northern California park for later this month. The controversy is enflaming a debate in the United States about what counts as free speech, and while the California chapters of the American Civil Liberties Union have reaffirmed that white supremacists who violently express their views are not protected by the First Amendment, it's still unclear whether those chapters would defend the alt-right group if its permit were revoked.
Patriot Prayer, a right-wing group whose rallies are often attended by white supremacists and neo-Nazis, received a permit to hold a rally at San Francisco's Crissy Field on August 26th. Though the rally's organizer, Joey Gibson, contends that he is not a white nationalist, lawmakers fear that the event will turn into "a likely violent rally of White Supremacists," and claim that the Park Service does not have the resources to ensure public safety.
"San Francisco takes great pride in being a city of peace which cherishes free speech and the right to public dissent," House Minority Leader Nancy Pelosi (D-California) said in a statement. "However, the National Park Service's decision to permit a white-supremacist rally at Crissy Field raises grave and ongoing concerns about public safety."
Historically, the ACLU's position has been to protect all speech and everybody's right to assemble, even for fringe or hate groups, according to Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University. In the late 1970s, for example, the ACLU defended a neo-Nazi group that wanted to march, in Nazi uniform, in Skokie, a Chicago suburb and an enclave of thousands of Holocaust survivors. (That Nazi group won their case on a free-speech argument, but ultimately rallied in downtown Chicago instead of in Skokie.) "In the '70s when the ACLU represented the Nazis in Illinois, that's sort of the prototypical ACLU case, but it also nearly broke the organization apart," Gutterman says. "It was well publicized that there were elements within the ACLU who did not support representing the Nazis."
There has been tension again among the ACLU ranks over the organization's involvement in litigation that allowed white-supremacist protestors to gather in Charlottesville over the weekend. But Executive Director Anthony Romero defended the ACLU's position. "The violence of this weekend was not caused by our defense of the First Amendment," Romero said in a statement last night. "Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it."
"This is all falling into sort of a nebulous area."
Now, the three California chapters of the ACLU seem to be attempting to "qualify" the organization's "protect all speech at all times" position, according to Gutterman.
The three chapters put out a statement on Wednesday night reassuring Californians that the chapters would not work to protect white supremacist protestors who incite violence. Citing the "troubling events planned in our state in the coming weeks," the joint statement read:
For those who are wondering where we stand – the ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble. We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.
The statement led many to suspect that the California chapters were breaking ranks with ACLU National's position. But in a statement this morning, ACLU National said that it agrees with "every word in the statement from our colleagues in California."
Indeed, no chapter of the ACLU would defend white supremacists who call for or carry out violence; the First Amendment does not protect those who incite or engage in violence. But qualifying the standard for incitement—in other words, defining the point at which speech creates a clear and present danger for lawless action—has also been trickier. "Going back to the early 20th century with the first cases that involved what we would consider fringe speakers—communists, anarchists, socialists—prosecuting those types of people for basically being involved in groups that preach for the overthrow of the government, the courts had a very difficult time deciding where the speech ends and where the illegal activity begins," Gutterman says.
The question in California is whether the fear that rally attendees might bring weapons and become violent, based on violence that broke out at similar rallies in other cities, is a credible standard of incitement. "This is all falling into sort of a nebulous area," Gutterman says. Denying a permit based on past examples of violence could risk violating the First Amendment rights of the speakers, according to Gutterman, because it involves making uncertain predictions about future events.
Still, it's not hard to understand why California lawmakers are alarmed. Protestors in Virginia, an open-carry state, were better prepared for a battle than they were for a peaceful protest; many showed up wearing body armor and pseudo-military garb, and were armed with "better equipment" than the state police, according to Virginia Governor Terry McAuliffe. "In the past, there have been outbreaks of fighting at rallies and protests, but because of what we saw last week with the organized level of violence, showing up at a rally with weapons or armor, I think I have to agree, in theory, that it does seem to move away from protest and it turns into violence," Gutterman says. California's gun laws are stricter than Virginia's, however, which makes it unlikely that the protestors who descend on San Francisco next weekend will be "armed to the teeth."
Still, the events in Charlottesville appear to be changing the way the ACLU interprets incitement of violence. "We make decisions on whom we'll represent and in what context on a case-by-case basis," ACLU National said this morning in its statement. "The horrible events in Charlottesville last weekend will certainly inform those decisions going forward." While in the past the ACLU would likely have argued the government cannot deny hate groups permits to protest simply because violence might occur, it's still unclear going forward how California's chapters, or ACLU National for that matter, will respond.