There is a theme among leftists at the moment that suggests that the First Amendment’s requirement of content neutrality is a creation of white supremacy, and that in an era of hate and venom such as we have seen in Charlottesville over the past year, we need to revise First Amendment jurisprudence so that we are able to suppress, or at least not enable, the speech of white supremacy groups.
I think I am summarizing their argument fairly; they argue:
1. The American government is based on, and is an implementation of, a system of white supremacy.
2. Going back to the 1780’s, the Constitution, and the First Amendment of which it is a part, is how the Founders imposed their white supremacy.
3. Content neutrality is part of the core of the First Amendment.
4. Therefore the content neutrality doctrine of the First Amendment is part of the structure of white supremacy.
Let’s look at history. In Merrie Olde England, of course, one could not criticize the King without running the risk of being arrested. Many of the settlers who came to the Colonies specifically wanted to be free of that prospect. In 1735, John Peter Zenger was charged with the crime of libel for criticizing the Royal Governor, and he spent 8 months in jail for libel before being acquitted by a jury. The drafters of the Bill of Rights intended the First Amendment to limit the power of government to suppress anti-government speech. Although white supremacists were among the drafters of the First Amendment, there was no part of the discussion of the First Amendment that was meant to encourage the repression of African-American ideas. Race didn’t enter the discussion, and it is hard for me to imagine a context in which it would have.
There was almost no litigation under the First Amendment until 1919, when, in a series of decisions — Schenck v. United States, Frohwerk v. United States, Debs v. United States and Abrams v. United States — the Supreme Court upheld convictions under statutes that punished interference with the war effort — organizing against the draft, encouraging people to oppose the war, supporting socialism, and calling for a strike in munitions factories as a way to oppose the war. The first three opinions were written by Justice Oliver Wendell Holmes, Jr.; Holmes and Justice Louis Brandeis dissented in Abrams. In Schenck, Holmes, writing for the Court, said that government can forbid speech that poses a clear and present danger of causing some harm that Congress had power to forbid. In his dissent in Abrams a few weeks later, Justice Holmes seemed to embrace — for really the first time — the “marketplace of ideas” analysis:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition…But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
Some people object to he “marketplace of ideas” metaphor for the First Amendment, noting that the Nazis didn’t come on August 12 to discuss and reason, so clearly a metaphor that is premised on the notion of civil discourse makes no sense. They argue that this “marketplace of ideas” framework is another tool of white supremacy.
In fact, the first time that the phrase “marketplace of ideas” appears in a majority opinion of the Supreme Court is in the 1969 decision, Keyishian v. Board of Regents, where the Supreme Court used the phrase in support of a decision that held that it was unconstitutional to fire teachers who were anti-Vietnam-war.
A large part of the First Amendment law that we have now comes from the 1960’s and 1970’s, where the Supreme Court made a lot of rulings that protected the speech rights of anti-war protesters, Communists, socialists, civil rights organizers, and unionists. Value neutrality and the centrality of the “marketplace of ideas” analysis did not grow out of the new Jim Crow; they grew out of protecting anti-war demonstrators and civil rights marchers. The same principles have been used to justify protecting the Klan, or the Nazis, but the doctrine itself first blossomed while protecting leftists.
Well, people argue, can’t the U.S. government outlaw the Ku Klux Klan, just like they outlawed the Black Panther Party?
The U.S. government did not outlaw the Black Panther Party. The Black Panther Party was effectively disrupted by the U.S. government under the FBI’s illegal CoIntelPro program — the FBI infiltrated the Panthers, spied on them, bugged and wiretapped them, and then tried its leaders on criminal charges growing out of this domestic spying operation. The illegal tactics were discovered and the operation was shut down and many of the Panthers escaped jail when the charges were thrown out by the courts. So — no, we con’t want to revive CoIntelPro for use against the Klan.
There were a lot of failures in Charlottesville last summer, but the failures were not due to some flaw in First Amendment jurisprudence. The fact is that when Charlottesville went to federal court to try to defend its decision to move the Unite the Right demonstration to a park a mile north of downtown, neither the brief filed by the City nor the affidavits submitted by the Chief of Police, the Fire Chief, and the City Manager conveyed to the Court the sense of danger that the confidential intelligence briefings were giving. The Mayor at the time has said that the information that they had did not rise to the level of a “credible threat” of violence. They had intercepted hundreds of texts and tweets and e-mails from the different white supremacist organizations who were planning to come to the Unite the Right rally that talked about how they expected violence, including exhortations to “make this another Berkeley,” a reference to a demonstration in Berkeley, California, that ended with hundreds of fights in the streets. But the Mayor at the time said that neither he nor any of the other City officials believed that this evidence represented a “credible threat” of a likelihood of violence.
As a result of this conclusion that they had no credible threat of violence, the City’s presentation to the Court at the August 11 hearing talked only about the problems of having so many protestors in such a small space; the briefs and affidavits that were filed with Judge Conrad did not make the compelling argument about the chats and tweets and e-mails and Facebook posts about the violence that they were expecting to bring to Charlottesville.
Under the circumstances, it is hard to blame the First Amendment doctrine of content neutrality for the chaos that ensued. The fundamental problem with August 12 was that Charlottesville was regarding the UTR rally as a First Amendment problem, when they should have been looking on it as a riot waiting to happen. This was a problem for law enforcement officers, not law professors.
The First Amendment, and the entire concept of liberty, is ultimately an act of faith. We believe that good ideas will drive out bad ideas, and that the best ideas will prevail against hate and bigotry. But that is an approach that requires vigilance, and argument, and discussion, and confrontation. We have to keep the faith inherent in the First Amendment — that our message is right, and we will be more persuasive than those whose message is one of hate. In the words of Justice Louis Brandeis in Whitney v. California (1927), “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”
