Free speech is test of faith in US Constitution

A counter protester who got hit with a stick by an alt-right member is covered with blood on his face on Aug. 12, in Lee Park in Charlottesville, Va. (Go Nakamura/Zuma Press/TNS)

This week’s question comes from Craig in San Francisco, who writes:

Q: “I’ve read several articles saying that some of the same ‘alt-right’ groups that protested last weekend in Charlottesville, Va., are staging rallies in San Francisco and Berkeley this weekend. Can’t these rallies be stopped?”

A: Craig, like you, many (including myself) disagree with the racial message of these “alt-right” groups. Most people are astounded that openly racist, neo-Nazi and fascist white supremacy protesters are permitted on public lands. (The San Francisco rally will take place at Crissy Field, federal park land). Your question requires an analysis under the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The foremost concern of the Bill of Rights, and its famous First Amendment, was to protect the rights of individuals to PEACEABLY speak and assemble free of governmental interference, and to criticize the government itself. In 1927, U.S. Supreme Court Justice Louis Brandeis wrote, “Freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth,” and that free and open discussion of all ideas, “affords ordinarily adequate protection against the dissemination of noxious doctrine…” Even the most offensive ideas deserve a public forum and if you disagree with them, the remedy is more speech countering those ideas.

In 1989, U.S. Supreme Court Justice William Brennan wrote, “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.” It is easy to be in favor of First Amendment rights when you agree with what is being said. The real test is defending the free speech rights of those whose views you detest. Even white supremacists, Nazis and the KKK have an inalienable right to gather PEACEFULLY and express their views.

The group sponsoring the Bay Area rallies this weekend is Patriot Prayer. On their Facebook page for the event, Patriot Prayer states, “No extremists will be allowed in. No Nazis, Communist, KKK, Antifa, white supremacist, I.E., or white nationalists.” One must question, who do they expect to show up? Patriot Prayer has arranged for “security” to be provided by the Oath Keepers, a heavily armed, far right, anti-government organization affiliated with the militia movement. This announcement has sparked memories of the Hells Angels providing security for the Rolling Stones 1969 concert at Altamont, Calif., where they killed a concert goer.

The government cannot prohibit speech because of disagreement with the content of that speech. The potential for violence at a rally is not enough to prevent a rally from taking place. In 1959, the U.S. Supreme Court, in Brandenberg v. Ohio, a KKK rally case, held that speech may only be prohibited if the speech is “directed to inciting or producing imminent lawless action” and “is likely to produce or incite such action.” Before a court can block a rally, the court must find that the group clearly advocates for illegal activities and that those illegal activities would occur immediately, i.e., it will not be a PEACEFUL, non-violent assembly. If someone makes a credible threat of actual violence or death then an injunction to stop the rally might (and should) be issued.

In a 1977 a Nazi group intended to march and hold a rally in Skokie, Ill., a predominantly Jewish neighborhood where at the time one in six residents had survived the Holocaust or was directly related to a survivor. Their permit to march was denied as the local government had determined that seeing Nazi flags, the Nazi salute and swastikas on the marchers’ clothing was equivalent to a physical assault for Holocaust survivors. The Supreme Court disagreed, noting that no display of any image was the same as being physically attacked.

The rally planned here for San Francisco has the potential for violence to occur, however the mere potential for violence is not enough to stop the rally. Indeed, in the 1960s, throughout the south, including the Selma march, racist mayors, sheriffs and even governors used the potential for unrest to block civil rights marches and demonstrations. They claimed that such a march would incite violence. First Amendment, through the courts, was used to prevent the racist politicians from prohibiting the peaceful assembly.

The First Amendment can be challenging, it is a test of your/my faith in the Constitution. The only way all of us have guaranteed free speech is to fight for the rights of the worst among us to have those same rights. No one benefits when the government gets to decide who can say what, and when and where they can say it. Today I lament that the First Amendment permits such vile and hurtful speech, but come this weekend I will need it so I can speak out against hate and the fascist agenda that is “trickling down” from the top. Please, everyone, be careful and civil no matter which side of the wall you come down on.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to

View Comments