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The denial of first amendment rightsled to the political violence that we saw yesterday. That was how Jason Kessler, who organized last weekends far-right rally in Charlottesville, Virginia, explained the actions of an extremist who rammed his car into a crowd of counter-protesters, killing one of them. Like many on the far right, Kessler was claiming that displays of hate needed to be protected as free speechor else.

The US constitutions first amendment protects free speech much more strongly than in most democraciesa German-style law against holocaust denial would never stand in the US, for exampleand Americans support the right to say offensive things more strongly than other nations, a Pew survey found last year. But for a long time, free speech was a core concern of the left in America, not the right.

When the National Review [a leading conservative magazine] was first published in the 1950s, the vast majority of articles addressing free speech and the first amendment were critical of free expression and its proponents, says Wayne Batchis, a professor at the University of Delaware and author of The Rights First Amendment: The Politics of Free Speech & the Return of Conservative Libertarianism. Today, review of its contents reveals the precise opposite.

What prompted the shift, Batchis says, was the rise of a concept that quickly became a favorite target of the right: political correctness. As Moira Weigel wrote in The Guardian last year, the concept rose to fame in the late 1980s. After existing in leftist circles as a humorous label for excessive liberal orthodoxy, it was co-opted by the right and framed as a form of limitation of free speech.

In 1990, New York Times reporter Richard Bernstein (paywall) used political correctness to refer to what he perceived as a growing intolerance on university campuses for views that diverged from mainstream liberalism. In a span of only a few months, stories about political correctness (some even deeming it a form of fascism) became commonplace in columns and on magazine covers. Before the 1990s, Weigel reports, the term was hardly ever used in the media; in 1992, it was used 6,000 times.

The idea became a centerpiece of right-wing theory, eventually leading to the popularity of the Tea Party and the election of a president, Donald Trump, who made the shunning of political correctness a political trademark.

But fighting political correctness wasnt the only thing that encouraged conservatives to embrace free speech. Money was also an incentive. Over the past decade the party has increasingly opposed any form of campaign-finance regulation, arguing that political donations are a form of free speech. Its reward came in the 2010 Supreme Court decision Citizens United, which allowed companies and trade unions to give unlimited donations to political causes. Liberals commonly oppose this view on the grounds, Batchis says, that spending money should not be treated as a form of speech.

In the event, both Republicans and Democrats have benefited from that ruling. Indeed, in last years election, Hillary Clinton raised $218 million from super PACS, the fundraising organizations that sprang up in the wake of Citizens Unitednearly three times as much as Donald Trump. During the primaries, though, the candidates for the Republican nomination collectively raised close to $400 million (paywall) from super PACs.

Conservatives have supported freedom of speech more consistently than liberals, even when its speech that goes against their views, according to Batchis. My research does suggest that even on hot-button issues like patriotism and traditional morality, many on the right have moved in a more speech-protective direction, he says. By contrast, progressives have been more likely to advocate constraints, particularly on speech that was seen as harmful to racial minorities and women, he says.

Still, there are exceptions to this rule on both sides. Many liberals still hold to the ACLU-style civil libertarian tradition even in the face of hate speech, says Batchis, while moralistic conservatives have advocated limitations on free speech such a ban on flag burning.

In the wake of Charlottesville, the California branch of the American Civil Liberties Union declared 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 protected free speech. And indeed, direct threats arent protected (pdf, pp. 3-4) by the first amendment. But to count as a threat, speech has to incite imminent lawless action, in the words of a 1969 Supreme Court ruling; merely advocating violence is allowed. That is why neo-Nazis are allowed to march, and to cast themselves as free-speech champions.

Read more:
How the American right co-opted the idea of free speech - Quartz

Can President Trump block citizens from following his own Twitter feed? Hear about the First Amendment aspects of this pending legal case.

The Knight First Amendment Institute at Columbia University has filed suit on behalf of several Twitter users who were denied the ability to follow the Presidents Twitter feed after they made comments critical of him. The Institute claims that the ban is a violation of a First Amendment right to free speech and free assembly, and that a public officials social media page is a designated public forum.

The Justice Department, defending President Trump, says the courts are powerless to tell President Trump how he can manage his private Twitter handle and the Institutes requests would send the First Amendment deep into uncharted waters.

Joining our We The People podcast to discuss these arguments are Alex Abdo, a senior staff attorney at the Knight First Amendment Institute and Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law.

CREDITS

Todays show was engineered by Jason Gregory and produced by Ugonna Ezeand Lana Ulrich. Research was provided by Lana and Tom Donnelly.

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Filed Under: First Amendment

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Podcast: Trump, Twitter and the First Amendment - Constitution Daily (blog)

Robert Shibley, Opinion contributor Published 10:22 a.m. ET Aug. 17, 2017 | Updated 10:24 a.m. ET Aug. 17, 2017

In Charlottesville, Va., on Aug. 13, 2017.(Photo: Tasos Katopodis, epa)

Americans were shocked by the naked political violence we saw this weekend in Charlottesville, Va. Commenters on the left and the right immediately blamed the usual suspects. The right blamed identity politics. The left blamed entrenched racism. But an obvious cause of injury and death is once again being overlooked: the fact that the violence was allowed to get underway at all.

State, local, and even college campus leadership appear to be telling police to stand by while some degree of unlawful violence takes place right before their eyes. Yet when that violence predictably spirals out of control, the authorities profess their inability to have done anything to stop it. Meanwhile, those inclined to violence are emboldened, secure in the knowledge that the publicity payoff is high and the odds of punishment low.

More: Three homeland security lessons from Charlottesville: Michael Chertoff

More: Trump Tower presser proved our president is far worse than a racist

This must stop. Freedom of expression is what gives us the ability to hash out societal issues through argument instead of physical conflict, but it is only meaningful when people are reasonably confident that they will be physically safe while they speak and listen. When the authorities simply stand by and let political violence occur, even in the hope of the conflict somehow de-escalating itself, they send the message that both sides have a free hand to violently attack their opponents. This makes a mockery of the First Amendment rights to free speech and assembly.

After the riot that successfully prevented Milo Yiannopoulos from speaking at the University of California, Berkeley, in February, many reported on the conspicuous lack of police involvement despite the injuriesand destruction. I personally spoke to a woman who had come to see the speech. Having been pepper-sprayed and nearly blinded by a violent protester, she told me she crawled over three layers of crowd barriers to reach a building with dozens of police inside. Yet when she reached the door, the police refused her entry.

Likewise, CNN reported that in Charlottesville, both sides agree that one group didn't do enough to prevent the violence as the crowds grew and tensions flared: the police. The organizer of the Unite the Right rally complained that police purposefully created the catastrophe that led to a melee in the streets of Charlottesville, while a Black Lives Matter leader attending the counter-protest remarked, It's almost as if they wanted us to fight each other.

More: Trump champion: Bury Confederate romanticism. It's indefensible and bad for GOP.

POLICING THE USA: A look atrace, justice, media

Its hard to think of a more thankless task than riot policing. But when authorities fail at the basic task of preventing mob violence, both political and policy questions need to be asked. When the Huffington Post reports that Several times, a group of assault-rifle-toting militia members from New York State played a more active role in breaking up fights than the police, law enforcements response needs serious rethinking.

There is one group of people who have so far consistently benefitted when political violence has been allowed to take place: the politicians who lead our localities and the de facto politicians who run our campuses. They avoid the political fallout from images of police confronting violent protesters (who may also be their supporters), they get to blame whichever side they like less for causing the violence, and get to pretend to fulfill their responsibility to keep people safe by making it harder for controversial viewpoints to be expressed.

Ann Coulter had to cancel a speech at Berkeley after the school insisted it would not be safe for her to speak on campus. Virginia Governor Terry McAuliffe blamed the ACLU of Virginia and a federal judge for blocking the citys attempt to revoke the rallys permit, saying We've got to look at these permits. This week, Texas A&M and the University of Florida announced that safety concerns prevented them from hosting speeches by Richard Spencer that are several weeks away. In contrast, in the 1960s American Nazi Party founder George Lincoln Rockwell was able to speak at UCLA, Michigan State, Brown, and other colleges, before audiences containing people who might have fought or lost loved ones to actual German Nazis. How can it be that hosting a similar speaker is impossible now?

Trading our free speech rights for the opportunity to be victimized by political violence is tremendously foolish, as is turning the blame for it on our civil liberties or those who defend them. Benjamin Franklin famously told a curious Philadelphian that Americas founders had given us a republic, if you can keep it. This is exactly what he was talking about.

Robert Shibley, an attorney, is executive director of the Foundation for Individual Rights in Education (FIRE).

You can read diverse opinions from ourBoard of Contributorsand other writers on theOpinion front page, on Twitter@USATOpinionand in our dailyOpinion newsletter. To respond to a column, submit a comment toletters@usatoday.com.

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Police must act fast to protect First Amendment rights: Robert Shibley - USA TODAY

Piers Morgan is at it again:

Morgan is echoing an idea that has been advanced repeatedly in the last couple of days: To wit, that there is something particular about Nazism that makes it ineligible for protection under the Bill of Rights. This is flat-out wrong. And, more than that, its dangerous. Abhorrent and ugly as they invariably are, there simply is no exception to the First Amendment that exempts Nazis, white supremacists, KKK members, Soviet apologists, or anyone else who harbors disgraceful or illiberal views. As the courts have made abundantly clear, the rules are the same for ghastly little plonkers such as Richard Spencer as they are for William Shakespeare. If that werent true, the First Amendment would be pointless.

This is not a controversial statement. It is not an interesting view. It is not a contrarian contribution to an intractable grey area. It is a fact. There are a handful of limits to free speech in the United States, and all of them are exceptions of form rather than of viewpoint. Heres Eugene Volokh to explain that further:

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with hate speech in any conventionally used sense of the term. For instance, there is an exception for fighting words face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.

. . .

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because hes black (or white), or intentionally inciting someone to a likely and immediate attack on someone because hes Muslim (or Christian or Jewish), can be made a crime. But this isnt because its hate speech; its because its illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speakers ex-girlfriend.

Under the doctrine laid out by a unanimous Supreme Court in the seminal Brandenburg v. Ohio decision, incitement to imminent lawless action may in some circumstances be prosecuted. But this rule is universal and narrow, and, crucially, is in no way akin to the sort of hate speech exceptions that obtain in every other country, and that so many Americans seem to believe exist here too. Under U.S. law it is legal for a speaker to say broadly that all the Jews should be killed or that it is time for a revolution, or that slavery is good, and it is not legal for a speaker to say to a crowd, lets all go and kill that guy wearing the yarmulke, or meet me in an hour at the armory and well start our insurrection at the Post Office, or look at that black guy over there in the blue t-shirt, lets chain him to my car.Who is saying these things, however, does not matter in the slightest. Whether one likes it or not, Brandenburg applies as much to neo-Nazis as to the Amish, as consistently to Old Testament preachers as to gay rights activists, and as broadly to my mother as to David Duke. It applies in exactly the same way to good people, to bad people, and to those in between.

It is, in other words, a principle a principle that cannot be obviated by cynical word games or by thinly disguised special pleading. I believe in free speech, but or I just dont think this is a free speech issue both popular lines at the moment simply will not cut it as arguments. On the contrary. In reality, all that the but and the I just dont think mean is that the speaker hopes to exempt certain people because he doesnt like them. But one can no more get away from ones inconsistencies by saying its not a speech issue to me than one can get away from the charge that one is unreliable on due process insisting in certain cases, well, thats not a due process issue to me. This is a free speech issue. Those who wish it werent just trying to have it both ways to argue bluntly for censorship, and then to pretend that they arent.

Leaving aside that the Supreme Court has been extremely clear on this matter, time and time again (inter alia, see: Brandenburg v. Ohio, R.A.V. v. City of St. Paul, Matal v. Tam),it seems obvious as a philosophical matter that any robust free speech protections will have to be assiduously neutral if they are to be useful at all. The purpose of the First Amendment is to deprive the government of the capacity to determine at the point of a bayonet what is true, and what is not; what is good, and what is not; what is acceptable to the ruling class, and what is not. To accept this arrangement is not to suggest that one thinks the Nazis might have a point, or to imply that one believes that we need the Bill of Rights in case Richard Spencers race science turns out to be true. And, however rhetorically effective it might be to pretend otherwise,it is in no way to defend those people. Rather, it is to propose that the only effective way of preventing governmental abuses is to take away its oversight of viewpoints in toto. Moreover, it isto submit that, having been born with ahost of unalienable rights, free human beings are not obliged to ask their employees in the government for permission to speak their minds.

In a country such as this one, that means that disgusting reprobates such as those who marched in Charlottesville will be beyond the reach of the state at least until they go beyond speech and into the realm of action (which does not include carrying a torch or a flag or wearing a t-shirt, but certainly does include driving a car into another human being). Is that distressing? Yes, it is. Had I been in Charlottesville at the weekend,Id no doubt have been even more appalled than I was watching it on television.But the salient question is not whether the status quo can be upsetting, but whether it is better than the alternative. Piers Morgan believes that If America doesnt wake up to the fact that what these Nazis did in Charlottesville is not free speech . . . it is in deep trouble. It seems obvious to me that the precise opposite is true. No free speech for fascists is an incoherent, almost Orwellian, position.Happily andon a routinelybipartisan basis the Supreme Court concurs.

More:
There's No 'Nazi' Exception to the First Amendment - National Review

Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.

Other forms of structural discrimination and violence also restrict the exercise of speech, such as police intimidation of African-Americans and Latinos. These communities know that most of the systematic harassment and threats that stifle their ability to speak have always occurred privately and diffusely, and in ways that will never end in a lawsuit.

A black kid who gets thrown in jail for possessing a small amount of marijuana will face consequences that will directly affect his ability to have a voice in public life. How does the A.C.L.U.s conception of free speech address that?

The A.C.L.U. has demonstrated that it knows how to think about other rights in a broader context. It vigorously defends the consideration of race in university admissions, for example, even as conservative challengers insist on a colorblind notion of the right to equal protection. When it wants to approach an issue with sensitivity toward context, the A.C.L.U. can distinguish between actual racism and spurious claims of reverse racism.

The governments power is not the only thing that can degrade freedom of expression, which Justice Benjamin Cardozo once described as the matrix, the indispensable condition, of nearly every other form of freedom. The question the organization should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?

This is a vital question because a well-funded machinery ready to harass journalists and academics has arisen in the space beyond First Amendment litigation. If you challenge hateful speech, gird yourself for death threats and for your family to be harassed.

Left-wing academics across the country face this kind of speech suppression, yet they do not benefit from a strong, uniform legal response. Several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.

Government suppression takes more subtle forms, too. Some of the protesters at President Trumps inauguration are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.) States are considering laws that forgive motorists who drive into protesters. And police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.

The danger that communities face because of their speech isnt equal. The A.C.L.U.s decision to offer legal support to a right-wing cause, then a left-wing cause, wont make it so. Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history.

K-Sue Park is a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law.

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A version of this op-ed appears in print on August 17, 2017, on Page A23 of the New York edition with the headline: The A.C.L.U. Needs to Rethink Free Speech.

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The ACLU Needs to Rethink Free Speech - New York Times