Free-speech challenge: Can First and Second Amendments be exercised simultaneously?

After Charlottesville, the American Civil Liberties Union's decision to no longer defend armed protesters comes amid a quandary for First Amendment guardians.

The year was 1977, and a group of neo-Nazis wanted to march through Skokie, Ill. – a Chicago suburb where, at the time, one out of every six Jewish residents was either a Holocaust survivor or directly related to one.

The American Civil Liberties Union successfully argued that the march should be allowed, despite the town’s vehement objections. (The rally was ultimately moved to Chicago.) Its defense of free speech, even when it qualifies as hate speech, cost the ACLU about 30,000 members – but the organization stayed consistent with a policy it held since the late 1930s.

Last week, though, the ACLU decided to change that policy in response to a violent white supremacist protest in Charlottesville, Va. Dozens of protesters marched through the town with guns – some armed better than police, according to state officials – illustrating a troubling new challenge for First Amendment guardians: what to do now when people want to exercise their right to protest at the same time as their right to openly carry guns in public?

“The Charlottesville events have triggered a classic American debate that has been part of our constitutional conversation for well over 100 years,” says Rodney Smolla, dean of Widener University Delaware Law School.

“You have the right to engage in racist speech, and there may be a state legal right to carry a gun, but when you put the two together in a mass demonstration you create a dangerous combination,” he adds.

Protesters carrying more than signs

The intertwining of the First and Second Amendments is not unheard of in the US (perhaps most famously with the Black Panthers in the 1970s, which led to gun control laws being enacted in states such as California). Today, though, 46 states have some form of open-carry laws on the books – complicating the debate, according to legal scholars. For its part, the ACLU says it is trying to adapt to the times.

Prior to the Charlottesville rally, the ACLU of Virginia successfully defended rally organizers when the town went to court to have it moved to a location outside the town center. The rally turned violent – with 35 people reported injured and a woman killed, police say, after a neo-Nazi sympathizer drove his car into a crowd – and was declared an unlawful assembly. Days later – after widespread public condemnation, including among its own members – the national organization announced that it will now not defend groups seeking to march with firearms.

They will also “screen clients more closely for violence at their rallies,” executive director Anthony Romero told The Wall Street Journal.

“It’s neither a blanket no or a blanket yes,” Mr. Romero added, saying the ACLU will continue to deal with requests on a case-by-case basis. But the events of Charlottesville, he said, require “any legal group to look at the facts of any white supremacy protests with a much finer comb.”

The shifting legal landscape around gun rights is what makes today’s free speech debate so much tougher for groups like the ACLU, experts say.

“The simple dedication to the principles of free speech become a little more murky when people are carrying guns,” says William Marshall, the Kenan Professor of Law at the University of North Carolina (UNC).

“You can be a strong believer in Second Amendment rights and a strong believer in First Amendment rights, but even if you are you might want to think about how those two work together in highly volatile demonstrations,” he adds.

Ahead of two protests by the self-described "alt-right" this weekend in California, ACLU affiliates in California released their own separate statement headlined, “White Supremacist Violence Is Not Free Speech.”

“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 concluded.

In Charlottesville, dozens of civilians carried semi-automatic weapons during the protest. Some “had better equipment than our state police,” Virginia Gov. Terry McAuliffe (D) said, while critics suggested the heavily armed protesters made police too afraid to intervene. 

But an early consensus among free speech scholars is beginning to emerge that a protest with guns cannot be treated, for First Amendment purposes, the same as a rally without guns.

“A march or rally by people who are heavily armed is not an exercise of what the First Amendment calls ‘the right of the people peaceably to assemble,’” writes Michael Dorf, a professor at Cornell Law School in Ithaca, N.Y., in the Take Care blog.

Aspiring protesters can “as individuals, exercise their putative Second Amendment right to carry arms in public or they can, as a group, exercise their First Amendment right to peaceable assemble … in which they are not armed,” he adds. “The attempt to combine those two rights will, in the typical case, be unprotected.”

Exactly how rallies with guns should be treated by courts remains to be seen. This legal terrain is complicated even further by the fact that there isn’t yet a definitive Supreme Court ruling regarding the right to carry guns in public.

Both the Heller (2008) and the McDonald (2010) decisions – the most recent Second Amendment cases heard by the high court – avoided answering whether Americans are allowed to openly carry guns in public. Last term, the justices declined to take up a case out of California that would have directly addressed it.

Samuel Walker, an emeritus professor at the University of Nebraska and a former ACLU board member, says the ACLU needs to keep protecting free speech for even the most extreme groups because “social progress has advanced in part because our law protects strong and often offensive language.” But he also agrees with the new change in policy.

“It’s a new aspect of this whole ongoing controversy,” says Professor Walker, author of “In Defense of American Liberties,” a history of the ACLU. “I do not think the ACLU should defend any demonstration or march where protesters plan to carry guns.”

Shifting boundaries of free speech

The boundaries of free speech have been evolving in the United States for more than 100 years.

Prior to World War II, the country was much tougher on offensive speech. In 1919, the US Supreme Court ruled that speaking out against the draft was not protected by the First Amendment, and in 1942 the justices ruled that “fighting words” (words that “inflict injury or tend to incite an immediate breach of the peace”) are not protected either.

Since then, the views of Justices Oliver Wendell Holmes and Louis Brandeis have prevailed. (At least in the public square. In areas such as schools and government buildings there are more restrictions on free speech.) Those justices believed “that the good speech will drown out the bad speech” in the “marketplace of ideas,” says Professor Smolla, author of “Free Speech in an Open Society.”

So as it stands, as far as the First Amendment is concerned, free speech includes hate speech. Unlike in Europe, “hate speech” has no legal definition in America.

The ACLU’s commitment to defending free speech rights is driven by the concern that carving out exceptions, even for the most repulsive language, could later be used to censor other, more acceptable, forms of speech.

Yet it’s that position that has provoked ire – even among some members – time and again. There's also a shift among younger Americans regarding the importance of protecting offensive speech: 40 percent of Millennials believe the federal government should be able to limit speech offensive to minorities, according to a 2015 survey by the Pew Research Center.

Even prior to Charlottesville, the ACLU had been under fire internally over its decision to defend Milo Yiannopoulos, a high-profile figure in the self-proclaimed “alt right” – a coalition that combines white nationalism, anti-Semitism, and populism – in a dispute with the Washington, D.C., public transportation authority. The authority had refused to display his ads on public transit. (Mr. Yiannopoulos is one of several plaintiffs in the case, including Carafem, a group that helps women access birth control and medication abortions; People for the Ethical Treatment of Animals; and the ACLU itself.)

But Charlottesville triggered a much larger backlash.

Many have called on supporters to stop donating to the organization. A board member of the ACLU of Virginia, Waldo Jaquith, resigned after the Charlottesville protests, tweeting that he “won’t be a fig leaf for the Nazis.”

The ACLU’s new tack leaves untouched the principle that hate speech is constitutionally protected – a principle some on the left are again calling into question – but the new dynamic introduced by shifting and still unsettled gun rights laws may introduce another boundary to America’s unique free speech protections in the future.

“The way the Second Amendment and First Amendment intertwine is really a new area of law,” says Professor Marshall, from UNC. “I think anyone approaching this area is sitting back and trying to think about what the ramifications are.”