Protected by the Law, But Only to a Certain Extent

By: Kira Paley  |  September 14, 2017

In 1969, KKK member Clarence Brandenburg was sentenced to 1-10 years in prison for hate speech against Jews and black people at a public rally in Washington; in his speech, he encouraged “revengeance” against those minority groups. The Ohio court affirmed that Brandenburg’s conviction was not a violation of his rights under the First Amendment. The United States Supreme Court, though, in the decision Brandenburg vs. Ohio, overturned his conviction, ruling that the government cannot punish citizens for verbally encouraging other citizens to violate the law.

In September 2017, a month after the deadly Charlottesville protest, a case like this is unfortunately applicable. But though three people tragically lost their lives because the far-right protest, and I of course do not advocate for violent protests that target minority groups of Americans, all of the protesters had a right to be there voicing their opinions.

The First Amendment, which protects free speech, certainly and obviously protects innocuous speech. But innocuous speech does not need protection; no one would argue that an American publicly declaring in the streets that the sky was blue would need protection under the law. If this were the free speech the First Amendment were talking about, it would be a superfluous amendment. Yes, certain laws are obvious, like the laws against murder and rape, but if there were laws advocating the legality of things that are obviously legal under a democratic government, the law system would lose legitimacy, and just practically, there would an infinite amount of laws.

In the Talmud, when something is obvious, the Rabbis are quick to point this out; the Talmud avoids stating things that are obvious, as it is a waste of space and decreases the textual value of statements that are not obvious. Like the Talmud, American law should not contain statements that are obvious and do not need to be stated, like the protection of innocuous free speech.

The free speech that is protected under the First Amendment, rather, is inflammatory speech: speech that needs to be protected under the law so that citizens are not arrested for declaring their opinions, even if they are controversial or even hateful opinions. The protesters in Charlottesville, though their opinions are abominable and reject everything Americans and decent human beings should stand for, have a right to declare those opinions under the First Amendment. Though those who marched in Charlottesville, spewing hate speech and promoting violence, possess beliefs that are possibly antithetical to some of those who wrote the constitution, they are still Americans and therefore their inflammatory speech is protected.

None of this, though, is to say that the speech of the far-right, Neo-nazi protesters should be condoned or normalized. Though it was legal for them to gather and share their thoughts, the rally got, to say the least, way out of hand, and led to violence, and even terrorism. The protests instilled fear in Americans from Charlottesville all the way across the country, and no citizen should fear that his or her life or right to be in America is a matter of debate. So while yes, the protesters are protected by the law provided they only speak about hateful things and not participate in violence or illegal activity, the extremity of their beliefs should be denounced by all, including citizens and politicians.

At the end of the day, there is a fine line between preaching violence and carrying out acts of violence, and one often leads to the other. Lawmakers, and citizens, should do everything in their power to not only denounce the hateful rhetoric of the far right, but also ensure that more rallies like the one in Charlottesville do not occur. Though citizens do have a right to publicly share their opinions, forums that allow Neonazis to gather and share their opinions inevitably lead to chaos, violence, death and fear. So while according to the letter of the law, Neo-nazi rallies could be considered legal, they should be avoided at all costs.