Americans have always taken pride in their First Amendment rights. According to the Newseum’s State of the First Amendment study, two out of three of Americans believe that the amendment is essential to American identity. Even though the United States is extremely politically divided, this sense of identity survives. Despite its position as a centerpiece of American cultural politics, the First Amendment has been limited by cases such as Bradenburg v. Ohio (1969), which established that freedom of speech does not protect incitements of violence. Later, the Miller test was established in 1974 to limit the use of “useless and artistically deflated” obscenity, further restricting the concept of free speech. The list of qualifiers continued to grow: the recognition of “owned speech” (speech certified by copyright), “corporate speech” (speech that represents a company as an entity and not separate individuals within it) and other definitions have changed what constitutes “free speech”. Of all these First Amendment revisions, Texas v. Johnson, which ruled on the validity of “symbolic speech” protections, has presented the most lasting implications.
Texas v. Johnson (1988) addressed Gary Johnson’s burning of an American flag on the steps of Dallas City Hall in an act of protest against the Reagan administration. Texas law required a sentence of one year’s imprisonment and a $2,000 fine for flag desecration. Eventually, Johnson was elevated to the Supreme Court, which characterized Johnson's flag burning as “expressive conduct” due to its distinctly political nature, overriding Texas’ flag desecration law. The fact that some ideas or actions can offend certain audiences does not justify their prohibition, the Court ruled. Since the Supreme Court’s decision, the Johnson precedent has been used to protect symbolic political speech all over the country. The most significant argument against this precedent relates to hate speech: if hateful and inflammatory speech is not regulated, as noted by Texas v. Johnson, it can present “clear and present danger” of harm. Where is the line drawn between protected political expression and an incitement of violence? Twenty-nine years after Johnson was decided by the Supreme Court, this tension boiled over on a hot summer day in Charlottesville, Virginia.
On the eve of August 11th, 2017, groups of white supremacists traveled to the University of Virginia to protest the removal of statues commemorating Confederate fighters in Charlottesville. Photos of these demonstrations soon went viral: groups of white men in polo shirts brandished torches and chanted the Nazi slogan “blood and soil”. The next day, white supremacists and others convened in downtown Charlottesville for a “Unite the Right” rally committed to the protection of Confederate monuments. By the end of the weekend, three people were killed and dozens more were injured in brawls between protesters and counter-protesters; police struggled to reign in the event. Casualties included two Virginia state troopers killed by a helicopter crash and one counter-protester run down as a white supremacist drove his car into a crowd. After these horrific events, two camps of public opinion arose: some championed a “broader than Texas v. Johnson” definition of the First Amendment (which would allow protests such as this to occur unhindered), while many argued that the hateful and violent nature of white supremacy voided any First Amendment protections. This debate begs the question of how free speech protections should apply to groups as vitriolic as the white nationalist movement. Should speech that “inadvertently” leads to violence be protected, as opposed to speech that directly calls for violence? Where does a call to hate end and a call to violence begin?
The First Amendment was intended to protect speech from censorship by a tyrannical government. This concept of freedom of expression, thought and speech extends to all Americans. But when the speech of one group calls for an encroachment of the rights of another, is it still protected? The message of white supremacy, which essentially calls for the eradication of non-white races and the establishment of a biologically European ethnic nation, encroaches on many Americans’ 14th Amendment rights to equal protection under the law. Even though the Constitution only applies to government actions in this case, the white supremacist movement’s explicit goal would be to build a government that directly attacks the rights of non-white minorities. So how do First Amendment rights of those against white supremacy function in a situation like this, when a non-white victim’s rights are abused when bigoted speech silences or devalues his/her voice?
The white supremacist demonstrations in Charlottesville directly caused violence. Lives were lost through the chaos encouraged by the “Unite the Right” rally: a demonstrator used his car as a weapon to injure counter-protesters, seemingly compelled by the white supremacist message. The fighting words doctrine is a component of the First Amendment that prohibits speech that directly incites violence against a specific target. The United States’ fighting words doctrine dates back to Chaplinsky v. New Hampshire (1942). In Chaplinsky, a Jehovah’s Witness named Walter Chaplinsky called a New Hampshire police officer “a damned fascist” and other slurs after the officer prevented him from preaching loudly in a public space. Chaplinsky’s speech was found unprotected by the First Amendment because the Supreme Court considered his words as intended to “inflict injury or incite an immediate breach of the peace."
Despite this clear precedent, regulation of free speech is a slippery slope. Outright ban of one brand of speech can give precedent to outlaw many different types of speech. A decision to outlaw expressions of white supremacy outright could be used as precedent to outlaw activist speech, which could violate some Americans’ 14th Amendment rights. One example of this sort of restraint on speech is modern day Germany, which outlawed speech that incites violence or hatred, or that glorifies or denies the acts of Nazism and the Holocaust. This regulation of speech has led to cases where a radio host was held accountable for hate speech on the air, and when a German man who defamed mosques was imprisoned for five years. A regulation of the First Amendment rights of white supremacists removes their beliefs from the marketplace of ideas, a direct challenge to the spirit of the First Amendment.
Of course, the broad definitions of “fighting words” and incitement of violence outlined by Chaplinsky have changed over time. One important modification to the fighting words doctrine was R.A.V. v. City of St. Paul (1992). A teenager, initialed R.A.V., burned a cross on the lawn of an African-American family, an act that violated St. Paul’s Bias-Motivated Crime Ordinance. The Supreme Court deemed this ordinance unconstitutional because the government lacks rights to measure “appropriate” speech. In contrast, Wisconsin v. Mitchell (1993) concluded that a hate crime does not qualify for freedom of speech protections. According to these two precedents, the demonstrators who committed acts of violence in Charlottesville should be charged under the relevant hate crime laws, but those who merely held torches and chanted should not face charges simply for their hateful speech. There is a difference between which actions constitute a true “hate crime” and what is merely “hateful”.
Jurisprudence is constructivist: as the ideas and cultural norms of the United States shift over time, courts adapts to reflect them. The cultural touchstones that led to the Supreme Court’s opinion of Plessy v. Ferguson in 1896 differ from those that informed Obergefell v. Hodges in 2015. The institution of the Supreme Court is strong, but it rests on an uneven foundation of past decisions that do not necessarily parlay with the values of the present. Perhaps the Supreme Court’s eventual deliberation on freedom of speech will reflect this sense of changing national identity. The ugly spectre of white supremacy is rearing its head once again in the American sociopolitical landscape, and the responsibility of courts to reflect true American values is more important than ever.