Wednesday, August 16, 2017

Hate, Violence and the 1st Amendment

As a lawyer, I feel it is my duty to help people understand the law. It is clear to me that recent events around the country reveal that most people misunderstand what the 1st Amendment actually protects and what it doesn't. I'd like to provide clarity on this matter.

What The 1st Amendment Says 

The First Amendment reads as follows: 
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.
This means that you you can practice/not practice whatever religion/philosophy you want, say almost anything you want, including disagreeing with the government publicly without going to jail, publish or write almost anything you want, and you can can have a peaceful protest.

Hate Speech Is Protected Speech Under the 1st Amendment

First of all, hate speech is protected by the 1st Amendment. This fundamental and basic Constitutional principle was recently reaffirmed in the Supreme Court case, Matal v. Tam. Justice Samuel Alito wrote the following about offensive speech:
[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. 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 thought that we hate.”
Justice Anthony Kennedy wrote separately, and agreed with the majority on the topic of offensive speech:
 A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
 The 1st Amendment Protects All Unpopular Speech...Including Yours!

Believe it or not, the 1st Amendment is designed to protect most forms of speech with a few narrow exceptions where it is not protected. Hate speech or offensive speech is not one of the exceptions to the 1st Amendment.

The 1st Amendment has been used to protect the speech of a wide variety of people and organizations such as the KKK, Communists, students, minors, members of the press, civil rights leaders, individuals who burn the American flag, pornography, strippers, people and individuals who engage in commerce, political campain donations, and technology like the internet and television. That is just a brief list but it covers much more than what I have just listed.

As you can see, the 1st Amendment protects all of us because we are all have different views, opinons, and ideas that we are free to express without fear of government censorship or oppression. In other words, the 1st Amendment protects a wide variety of thought and speech. That includes speech we may not like or find harmful, offensive or distasteful.  The right to free speech isn't just to protect speech we do like but it is there to protect the speech we don't like. 

Which goes back to my original point that the 1st Amendment protects all of us since most people have an unpopular or controversial opinions, views or thoughts that we want to share with others or the public. Thus, 1st Amendment protects all of us when we want to say something that is unpopular or controversial. If we try to take speech away from others because we don't like what they say, that doesn't occur without diminishing our own right to speech. To take away speech from one group, is to take speech away from all groups. 

Kathrine Mangu Ward, writing for Reason.com wrote about the potential consequnces of eliminating speech we don't like:
"But if fascists are to lose their free speech rights, someone must take them. And if you believe, as many of the counter-protesters do, that the white nationalists and their brethren were emboldened by the presence of a man in the White House who sees them as part of his coalition, then why on God's good green earth would you want to turn around and hand that very man the right to censor anyone whom he labels fascists? Because I can tell you right now, the list of folks that Trump and the restive-but-still-Republican Congress would like to silence sure won't look like the list those sign-wavers have in mind.

The people wielding "No Free Speech for Fascists" placards might as well be holding up signs saying "No Free Speech for Muslims." And in fact, many on the right have been making just that argument against the ACLU for years now, arguing that exceptions to our free speech principles should be made to curtail extreme speech by Muslim religious figures or activists in the name of security, or even (in the stupidest variant of the idea) that the ACLU is part of a radical Islamic conspiracy. But if the justification for restrictions on the speech of one man is violence committed by another, there can be no end to list of people who may be silenced in the name of order."
The 1st Amendment Was Used To Protect the KKK, Nazis and White Supremacists

When it comes to neo-Nazis, the right to promote their twisted thinking goes back to the 1977 case Nationalist Socialist Party of America v. Village of Skokie. These Nazis wanted to stage a march through a community that was predominantly Jewish. Naturally, the citizens of that community were angry, offended and outraged. However, the Supreme Court upheld the the Socialist's right to march through the community and that the community could not block this activity even if was offensive.

The 1st Amendment Doesn't Protect, Justify or Defend The Use of Violence Against Those Who Utter Hate Speech or Offensive Speech 

As an attorney, I am uncomfortable with the growing acceptance othat violence is ok towards people with views that other people may find objectionable. 

There are many who justify violence against people who traffic in hate or offensive speech because they are allegedly engaging  in what they call “verbal violence,” and therefore argue that physical violence is sometimes justified in order to stop such verbal violence. In other words, words you don’t like deserve to be fought physically.

Under the 1st Amendment, the only effective counter to free speech - hateful or not - is more speech. This concept has been affirmed by our Founding Fathers, politicians and Surpreme Court cases. Otherwise, any attempt to use violence to supress speech that some people find objectionable is always met with more violence; and nothing meets and defeats violence but more violence. 

Once society accepts violence as a method of curbing speech people find offensive, where do you draw the line on which groups of people is ok to hit and which groups of people are not ok to hit based on their beliefs or speech?

Additionally, people will come up with their own justifications for violence against others. They will argue that "if X can engage in violence against Y becuase X finds their Y's offensive, why can't C hit D because C finds D's language hateful?" This line of thinking will lead to more violence, not less. This line of thinking is dangerous for all of us, especially minorities.

Moreover, who will decide which speech is not offensive and which ones are offensive? Will it be the party currently in power? What happens if the positions of power changes from one party to another? Will the new ruling power dictate new "speech" codes and use it as a club to hammer their opponents?

Violence and Free Speech In Charlottesville

What happened in Charlottesville was terrible. Horrible. And Predictable. 

Predictable because of the growing accceptbility over the false idea that offensive speech opens the door for people to take a swing at the speaker who uttered bad speech. 

Now, before I go any further, I want to make it clear that I am not defending these Nazis or what they said. I am not defending what Antifa did or said. I just personally and professionally (as a lawyer) don't like the idea that it is ok to punch people because they have unpopular views. However, what I will defend is people's right to utter bad speech...even if I find it 100% intolerable.

I find that both sides were wrong engaging in violence towards one another. I know that I am not in the minority on this. I think there is a significant segment of America who are 100% against the Nazis and White Supremacists but who are also not thrilled with Antifa and BLM either. I think that is a valid, fair and reasonable position to hold.

Recently Trump held a press conference and during the Q and A portion of the press conference, Trump said both the Nazis and Antifa were at fault for the violence but then tried to defend the Nazi protesters. Trump was both right AND wrong here. He's right that both groups are to blame for the violence. But he was absolutely, completely, utterly WRONG for defending the Nazi protesters at that press conference. If Trump's press conference yesterday wasn't cause for outrage and action, I don't know what would be. White supremacy, Nazism, racism, anti-Semitism, bigotry, and hatred should not be defended or rationalized by ANY US American president. It was not ok for Trump to defend the "Alt Right."

But Trump was right in the sense that both the Nazis and Antifa were wrong to engage in violence against one another. 

Blaire White has stated the following on Twitter:
 
https://twitter.com/MsBlaireWhite/status/897639342201503744
Many people are furious because they argue that Trump and others are engaging in a false moral equivalency between Nazis and Antifa. They demand that people only condemn the Nazis and not Antifa.

In the Charlottesville situation, it isn't about moral equivalency. It's about holding people accountable. You cannot praise one form of violence and denounce another.

If you think one side is more culpable than the other, let me remind you that both the Charlottesville Chief of Police and the Virginia ACLU have openly said that both (Nazis & Antifa) group were both there to brawl and both are to blame. The people who live in Charlottesville felt that both sides were to blame and they didn't want either side coming into their town.

Currently, there is no room for discussion, nuance or thought on the discussion of violence between the Nazis and Antifa. Many people demand that you must either choose to oppose the Nazis or not and people will pressume that you support them. Based on those demands, we have a "either you are against us or for us" mentality and that no other opinion will be tolerated. It is not possible in this current climate to openly say you think both sides suck.

We should all be asking ourselves: Is there any room in our national discourse for those group of people who don't like either side and feel that both are bad for very different reasons?

Moreover, no one is saying that the Nazis and Antifa were equally bad at Charlottesville. Just because one group is bad, it doesn't mean there can't be more than one group that is bad. They can be bad for different reasons and not on the same level or equivalency. Thus, one can say that both groups are bad. But they are not equally bad. Nazis are evil. Supporting Nazism or racism is just straight up evil. Antifa are thugs. The worst Antifa has done is engage in vandalism, arson, assault & battery on cops, reporters & racists. 

The tactics of both the Nazis and Antifa are equivalent since they both brought weapons into Charlottesville to do battle against one another. What is NOT equivalent is the idealogies of Antifa and the Nazis. They clearly have a difference of opinon on the issue of race in America.

Again, what is important here is that we are holding the people who engage in violence accountable. You cannot praise one form of violence and denounce another.

Let me be clear: The Nazi and White Supremacists are EVIL. There is no dispute about that. But let's not kid ourselves into believing that Antifa are angels.  Before Antifa,  Leftist violence has been happening for a long time ever since the 1999 World Trade Organization meeting in Seattle. They were principally opposed to Capitalism but with the concept of intersectionality, they're also in support of Leftist/Marxist issues. That was on full display with Occupy Wall Street. All of this occured before Trump came into office. Some people would describe them as the "Alt Left."

With the election of Donald Trump, Antifa was born allegedly to fight facism and racism by using facist tactics and goals. On the day of Trump's inaguration, they rioted, looted, damaged property, broke windows and torched cars. They have also suppressed the speech of conservative speakers and authors by egaging in the same behavior of rioting, looting, vandalism, arson, assault & battery against those who defended the 1st Amendment right of these speakers to share their views on college campuses across the nation. They have also been protesting against the police and physically assualting them with sticks, rocks, water balloons filled with paint and defacing police cars.

Just because many people are not supportive or impressed with Antifa folks, doesn't mean people should stop fighitng the Nazis. The fight against these racists must go on within the boundaries of the Constitution and federal, state and local laws. Oppose them by all legal means. But assaulting them is not one of them and not justified. These Nazis have a right to speech. But they can't choose the consequences of such speech.

At the same time, we can't let Antifa's violence off the hook just because we don't agree with the racism and bigotry from the other side. 

The police in Charlottesville did a poor job of managing the situation between the Nazis and Antifa. It is up to the police to defend free speech by providing security and they failed to do that. The police claimed that they were outgunned but that later turned out to be false. The police claimed that the situation was too dangerous for them to get in the middle of. That claim is false because what are the taxpayer's paying for when tax dollars are being given to the police if not to fight crime and get into dangerous situations!? Later, it was discovered that a standown order had been given and that is why the police didn't jump in. 

That is why the argument that violence is justified against harmful speech is dangerous. We are a nation of laws, not a nation of anarchy. The police allowed anarchy to rear its ugly head for a brief moment before they finally jumped in and started arresting people. As a lawyer, I simply ask: do people really want to live in a society without law and order? We saw what society could look like without police, law and order....and it was scary.

Conclusion
If society is to improve and get better, we need to allow people who can stand up be open in their opinions even if it s different, contrary, or controversial. We need to get back to the idea that people are free to say things that we don't like or is offensive.

If you want to curb prejudice, racism, bigotry, sexism, punching people won't do it. But speech will. You will have to talk to them and engage with them, serve them, feed them and hopefully they will turn from their bigoted views. 

We also need to wean ourselves off our addiction to outrage and return back to sanity. People are too easily offended, angry, or put off these days and it doesn't help bring people together and reduce negative feelings and violence. 

Also, we need to return to civic education and teach people about the Constitution because too many people are misguided on how the 1st Amendment works and what speech and behaviors are acceptable and unacceptable under the Constitution. 

Finally, Ben Shapiro is right. We need to be firm in condemning violence. He offers his solution to the violence that happened in Charlottesville:
Here's the moral solution, as always: Condemn violence and evil wherever it occurs. The racist philosophy of the alt-right is evil. The violence of the alt-right is evil. The communist philosophy of Antifa is evil. So is the violence of Antifa. If we are to survive as a republic, we must call out Nazis but not punch them; we must stop providing cover to anarchists and communists who seek to hide behind self-proclaimed righteousness to participate in violence. Otherwise, we won't be an honest or a free society.