Violent public demonstrations involving white supremacists and counter-protesters in Virginia last weekend are driving a lot of attention to the long-debated subject of free speech rights in public locations.
In past situations, fundamental First Amendment questions about the ability of organized white supremacists to speak and demonstrate in the public forum were focused on a group that espoused such values: the Ku Klux Klan.
Last month, the Klan held its own public rally in Charlottesville, Virginia, at a Robert E. Lee statue located in a public park. Media reports in July indicated there were words and some shoves exchanged between Klan members and counter-protesters, before police declared the scene as an unlawful assembly when the crowd became unruly.
There are three Supreme Court cases that have established some basic First Amendment ground rules in these scenarios.
The most significant decision is also a landmark First Amendment case, Brandenburg v. Ohio from 1969. The Supreme Court’s per curium opinion in Brandenburg reversed 50 years of legal decisions that greatly restricted groups that wanted to use public spaces to make unpopular speeches or to make speeches that advocated violence.
Clarence Brandenburg, an Ohio Klan leader, allowed filmmakers to depict Klan rallies for a documentary that included inflammatory public speeches. Brandenburg was then arrested under an Ohio law, which had its roots in the 1919 Red Scare, which made it illegal for a person to publicly advocate for violence.
The Supreme Court in 1919 upheld the conviction of a Socialist leader who publicly advocated for war-time draft evasion in Schenck v. United States. The Court established a “clear and present danger” test that allowed courts to take into consideration the context of such statements and their potential to cause harm.
Another decision, Whitney v. California in 1927, led to a broader test that allowed speech to be restricted if it was detrimental “to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." Justice Louis Brandeis, while concurring with the overall decision on different grounds, thought lawmakers needed to have a specific reason to restrict free speech, despite its unpopularity. “The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State,” Brandeis argued.
In Brandenburg, the Court overturned the Whitney decision, and it established the imminent lawless action test still used today. “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” the Justices said.
Another case involving the Klan and public free speech was a decision about cross-burning, Virginia v. Black from 2003. The Court decided the constitutionality of a Virginia law that banned cross-burning; one of the two incidents in the case involved a cross-burning at a Klan rally led by Barry Black. The cross-burning was on private property.
Black objected to jury instructions that any cross-burning should be seen as sending a message of an “intent to intimidate.” In a complicated plurality decision from Justice Sandra Day O’Connor, the Court said that Virginia could pass a law restricting speech, in the form of a cross-burning, that sought to intimidate people, but it couldn’t interpret all cross-burnings as intimidation.
“While a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful,” O’Connor said.
But the jury instructions in Black’s case crossed a line, O’Connor said. “It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings,” she wrote. “For these reasons, the prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face.”
And in 1995, the Supreme Court in Capitol Square Review Board v. Pinette said that the Klan could place a cross on the Ohio state-house plaza during the holiday season.
In a 7-2 decision, Justice Antonin Scalia said the state violated the Klan’s speech rights on religious grounds by restricting its access to a public forum. “The display was private religious speech that is as fully protected under the Free Speech Clause as secular private expression,” Scalia concluded. “Because Capitol Square is a traditional public forum, the Board may regulate the content of the Klan's expression there only if such a restriction is necessary, and narrowly drawn, to serve a compelling state interest.”