Charlottesville and the First Amendment

On Saturday, August 12th, 2017, white nationalists and counter-protesters clashed at a march in Charlottesville, Virginia. The march was organized by those protesting the removal of a statue of Robert E. Lee, a famed Confederate general. White nationalists called the march “Unite the Right”, an attempt to come together and protect Southern history. Things turned violent as the group was met with counter-protesters—among them, members of the clergy who began peacefully singing.

Just before 2pm, James Alex Fields Jr. drove his car into a group of counter-protesters, killing a 32-year old woman. He is currently facing second-degree murder charges, at a minimum. All in all, 34 people were injured during the march. In a nonviolent tragedy, two state troopers died after their helicopter fell to the ground and burst into flame.

On Friday night, a group of white men marched in Charlottesville, armed with flaming tiki torches, Confederate flags, and Nazi insignias. Unmasked, these men were not ashamed to associate themselves with symbols of genocide, war, and racism. They shouted “Heil Trump” as they marched. The next day, white nationalists showed up ready for battle. Armed with shields, guns, and protective gear, they moved like they had been practicing for months. Counter-protesters appeared with food, water, and first aid.

Throughout the protest, the white nationalist group shouted a plethora of racial and gendered slurs at the audience and counter-protesters. At what point does this hate speech become criminal activity? Let’s think about this. In June, the Supreme Court unanimously upheld the principle that free speech cannot be banned or infringed upon just because it is deemed offensive.

Justice Samuel Alito stated “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the though that we hate.” In 1977, the Supreme Court upheld the right of Neo-Nazis to march with swastikas throughout a majority Jewish town. Read more here.

Although hateful speech may always be protected by the First Amendment, a line may have been crossed on Saturday. “Fighting words” are not covered by the First Amendment, and are considered a part of disorderly conduct. They are words that directly incite violence, cause injury, or breach the peace. Many of the chants utilized by the white nationalists were not fighting words, although extremely hateful, anti-Semitic and anti-immigration. They were heard chanting, “Jews will not replace us” and “white lives matter.”

As the march became heated, protesters singled out individual groups of people. They began chanting expletives directed at homosexuals, shouting “F*** you f****ts” to the crowd. Later, a Washington Post reporter heard chants of “Go the f*** back to Africa” and the n-word, directed at black members of the audience. Read more here.

It is clear that these phrases are serious personal insults directed at specific people and groups of people. However, they cannot be classified as fighting words unless their use would incite immediate violence. Protesters were separated from counter-protesters by barricades, effectively preventing major violence. Additionally, the argument can be made that these slurs and hateful words were not directed at specific individuals, and were only broad generalizing insults.

In 2001, an Arizona appeals court determined that free speech does not cover aggressive and racialized speech directed at an individual. A man called a black woman the n-word and threw an empty can of soda at her, and was found guilty of a crime.

There have been no indications that the words spoken on Saturday will make it to a court, but it’s important to realize where the line is drawn. Once “fighting words” are uttered, the First Amendment privilege no longer applies. We can only hope that these kinds of hateful demonstrations do not exemplify who we are as a nation.

If you or someone you know has been charged with a crime relating to disorderly conduct or hateful speech, contact an experienced Tampa attorney today. Call Pallegar Law, P.A. at 813-444-3912 to speak with someone who can help.