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'Vile' speech still protected, experts concede

Brian Bowling
| Saturday, Aug. 19, 2017, 10:03 p.m.
CHARLOTTESVILLE, VA - AUGUST 12:  Hundreds of white nationalists, neo-Nazis and members of the 'alt-right' march down East Market Street toward Lee Park during the 'Unite the Right' rally August 12, 2017 in Charlottesville, Virginia. After clashes with anti-fascist protesters and police the rally was declared an unlawful gathering and people were forced out of Lee Park, where a statue of Confederate General Robert E. Lee is slated to be removed.  (Photo by Chip Somodevilla/Getty Images)
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CHARLOTTESVILLE, VA - AUGUST 12: Hundreds of white nationalists, neo-Nazis and members of the 'alt-right' march down East Market Street toward Lee Park during the 'Unite the Right' rally August 12, 2017 in Charlottesville, Virginia. After clashes with anti-fascist protesters and police the rally was declared an unlawful gathering and people were forced out of Lee Park, where a statue of Confederate General Robert E. Lee is slated to be removed. (Photo by Chip Somodevilla/Getty Images)

Decades of Supreme Court decisions have upheld the right of anyone to peacefully demonstrate in public spaces no matter how abhorrent their views, said Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania.

He has firsthand experience. When Pittsburgh refused a permit for a Ku Klux Klan rally at the City-County Building in 1997, Walczak went to court to defend the group's First Amendment rights. He was among the onlookers when the Klan held its rally.

“That speech was vile,” he said.

Ironically, one of the speakers cursed the ACLU despite the organization standing up for their rights, Walczak said.

In the wake of the violent white nationalist rally in Charlottesville, Va., several people and groups have criticized the ACLU for representing the rally organizer in a dispute over the demonstration's location.

ACLU Executive Director Anthony Romero said Thursday that the organization will no longer represent hate groups who want to demonstrate with firearms, according to the Wall Street Journal.

Getting criticized for representing unpopular groups has been familiar territory for the ACLU since 1977 when the nonprofit represented a neo-Nazi group that wanted to march through the Chicago suburb of Skokie but was refused a permit by the city.

The ACLU won the case and lost about 30,000 members, and the group never held its march.

“We believe that rights are meaningless unless they belong to everybody,” Walczak said. “Everybody has a right to peaceful protest and assembly.”

The Pittsburgh administration tried to stop the 1997 rally, arguing that it would lead to violence, he said. The same rationale has surfaced as a reason to block alt-right rallies in the wake of Charlottesville, where one counter-protestor was killed and several others were injured when a white nationalist drove his car into the crowd.

Known as the “heckler's veto” in legal circles, the same argument was used in the South to shut down civil rights marchers, Walczak said.

“You can't shut down somebody exercising their constitutional right” because there might be violence, he said. “The solution is not to silence the speaker but to address the lawbreaker.”

Even if previous rallies by the same group have turned violent, the First Amendment doesn't allow the government to curtail the rights, said Bruce Ledewitz, a Duquesne University law professor who teaches state and federal constitutional law.

From a government standpoint, “I can't assume that you're going to break the law,” he said.

That's true even if the speaker has been convicted of committing a crime during a previous event, he said.

“You can't say that because you broke the law in the past, you can't speak,” Ledewitz said. “Unless you tell me you intend to incite violence, I have to assume that you will be peaceful and that others will be violent. My obligation at that point is to protect your right to speak.”

If others show up and try to disrupt the demonstration, “technically speaking, the police have an obligation to arrest those people,” he said.

That doesn't mean people can't heckle a speaker, said Eugene Volokh, a UCLA law professor who teaches First Amendment law.

Throwing tomatoes or threatening to beat up the speakers if they don't stop talking is not protected by the First Amendment. Catcalls or shouting questions generally is protected unless it reaches the point of drowning out the speaker or violates a state law.

“It's something of a matter of degree,” he said.

The venue partly determines how much heckling is allowed, he added.

“It is pretty clear that nobody expects library silence at a park,” he said.

Another issue raised as a result of Charlottesville is whether the First Amendment protects people from losing their jobs if their employers disagree with their message.

“The short answer is ‘no,' unless it's a public employer,” said Sam Cordes, a lawyer who specializes in employment cases.

Public employees are shielded from being fired as long as they're speaking on a matter of public concern, he said. While the First Amendment doesn't protect private employees, federal laws provide protection in some instances, he said.

If someone is speaking out against illegal workplace discrimination, federal anti-discrimination laws protect them even if the company they're speaking against isn't their employer, Cordes said. An 1866 law also protects people who are protesting commerce-based racial discrimination, such as a restaurant refusing to serve people because of their race.

The speaker is protected even if the claim isn't accurate, as long as the person had a “good-faith, reasonable belief” that it was true, Cordes said.

Brian Bowling is a Tribune-Review staff writer. Reach him at 724-850-1218, bbowling@tribweb.com or via Twitter @TribBrian.

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