A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.
I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.
When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.
It isn’t always easy to draw the line, to identify when a message or idea becomes something else.
I illustrate the dilemma by giving students a number of “scenarios” requiring that they decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).
Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?
What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)
Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”
As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.
So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to criminal intimidation.
Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.
The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.
It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.