The Washington PostDemocracy Dies in Darkness

‘Hate speech is not protected by the First Amendment,’ Portland mayor says. He’s wrong.

Portland Mayor Ted Wheeler denounces the fatal stabbings of two men by a suspect accused of going on an anti-Muslim rant on May 27. (Video: Reuters)
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As his city mourns two men who were killed after confronting a man screaming anti-Muslim slurs, Mayor Ted Wheeler is calling on federal officials to block what he called “alt-right demonstrations” from happening in downtown Portland, Ore.

His concern is that the two rallies, both scheduled in June, will escalate an already volatile situation in Portland by peddling “a message of hatred and of bigotry.” Although the organizers of the rallies have a constitutional right to speak, “hate speech is not protected by the First Amendment,” Wheeler told reporters.

But history and precedent are not on Wheeler's side.

The Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech.

The high court did so in 1969, when it found that a state law banning public speech that advocates for illegal activities violated the constitutional rights of a Ku Klux Klan leader.

It did so again in 1992, when the justices found that a city ordinance prohibiting the display of symbols that arouse anger toward someone based on race, religion and other factors is unconstitutional.

And again in 2011, when the court ruled in favor of church members who picketed and carried signs with homophobic slurs at a soldier's funeral.

Portland mayor asks feds to bar free-speech and anti-sharia rallies after stabbings

Although certain forms of speech are not protected by the First Amendment, hate speech isn't one of them, Eugene Volokh, a law professor and free speech expert, wrote last month. For it to be banned, experts say, it must rise to the level of threat or harassment.

“Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas,” Volokh said. “One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans.”

The American Civil Liberties Union agrees.

Following Wheeler's announcement, the nonprofit's Oregon chapter criticized the mayor, saying banning a group from holding a rally merely because of what it seeks to express steps into dangerous territory of government overreach.

“The government cannot revoke or deny a permit based on the viewpoint of the demonstrators. Period,” the ACLU of Oregon said in a Facebook post Monday. “It may be tempting to shut down free speech we disagree with, but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.”

In a lengthy Facebook post Monday, Wheeler called on federal officials to revoke a permit authorizing a June 4 “Trump Free Speech Rally” at a federal plaza in downtown Portland. Another event by the same organizers, “March Against Sharia,” is scheduled for June 10 but has not received permits. He also asked the organizers of the rallies to cancel the events.

“I urge them to ask their supporters to stay away from Portland,” Wheeler wrote. “There is never a place for bigotry or hatred in our community, and especially now.”

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Wheeler's announcement came three days after Taliesin Myrddin Namkai-Meche, 23, and Ricky John Best, 53, were killed after they tried to protect two young women from a man who was screaming anti-Muslim slurs at them. A third man who also intervened was injured.

Portland passenger who was harassed before attack: 'He told us to get out of his country' (Video: Reuters)

Jeremy Joseph Christian, 35, whom the Southern Poverty Law Center had described as someone who holds racist and extremist beliefs, is facing aggravated murder and other charges in connection to the killings. According to the hate watch group, Christian was seen at an earlier free-speech rally held by the same organizers. A photo shows him giving the Nazi salute.

Joey Gibson, lead organizer of the rallies, tried to distance himself from Christian and said he preaches limited government and free speech, not hate.

“What I say, the things that I say, the things that I preach goes against everything that Jeremy Christian would've said,” he said in a Facebook Live video in response to Wheeler's statement.

Gibson also criticized Wheeler for trying to silence him and those who plan to participate in the rallies. He said his June 4 event, which would feature live music and speakers, is not a platform for racism and bigotry.

“If they pull our permits, we cannot kick out the white supremacists. We cannot kick out the Nazis. Do you get that?” Gibson said. “If anyone has a sign, a racist sign or anything, they will be gone. If anyone screams anything racist, they will be gone. But if they pull our permit, we will not have that right.”

Wheeler is not the first to argue that hate speech is not protected by the First Amendment.

Former Vermont governor Howard Dean did so in a tweet last month.

Dean, who sought the Democratic presidential nomination in 2004, was responding to a tweet from a former New York Times reporter who referenced a 15-year-old Ann Coulter statement saying she regrets that convicted Oklahoma City bomber Timothy McVeigh didn't go inside the Times building.

No, Gov. Dean, there is no ‘hate speech’ exception to the First Amendment

In an article criticizing Dean's tweet, Volokh, the free speech expert, argued that the First Amendment does not protect legitimate threats or face-to-face insults that incite a fight. But most forms of free speech don't fall into this narrow category.

“Even if Coulter was speaking seriously (which I doubt), such speech isn't unprotected incitement, because it isn't intended to promote imminent illegal conduct,” Volokh wrote.

The First Amendment, he said, provides a strong protection to ordinary citizens, even in cases that involve the most bigoted and racist of speeches.

In the 1992 case, which was spurred after several teenagers allegedly burned a cross on a black family's lawn in Minnesota, the Supreme Court ruled that a local ordinance under which the teens were charged is “facially unconstitutional” because it bans otherwise permitted speech based solely on the recipient.

The government, according to the opinion written by Justice Antonin Scalia, “has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.”

In the 2011 case, which was prompted after Westboro Baptist Church members traveled to Maryland to picket the funeral of Marine Lance Cpl. Matthew Snyder, who was killed in Iraq, the Supreme Court ruled in favor of the picketers who held signs that said, “Thank you for dead soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys” and “You're Going to Hell.”

Justice John G. Roberts Jr. wrote in the opinion: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Derek Hawkins contributed to this story.


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