The question facing California government officials, as I understand it, is not whether to allow violence or constitutionally unprotected incitement. Rather, it’s whether the government can ban events — of whatever political stripe — based on a fear that the speakers or some of the attendees may engage in violence (or in unprotected incitement). The answer, under modern First Amendment doctrine that the ACLU has generally helped develop, is “no.” I would have thought that people want to know about the ACLU of California’s position on that question, and not on whether “violence” (white supremacist or otherwise) is free speech.
I asked the ACLU spokesman who sent around the statement about this:
I blog at the Washington Post site, and I’m writing something about the ACLU statement on “White Supremacist Violence is Not Free Speech.” Of course, violence of any sort isn’t free speech, but I’m wondering what the ACLU’s position is on the proposals to revoke the “alt right” rally permit in Northern California, and similar calls to ban such events. Can you tell me, please, if the statement is meant to address that, and what the ACLU’s position on that would be?
The answer I got:
This is what we have to offer for now. We will circle back with you if anything changes.
UPDATE: The national ACLU has endorsed the ACLU of California statement:
We agree with every word in the statement from our colleagues in California. The First Amendment absolutely does not protect white supremacists seeking to incite or engage in violence. We condemn the views of white supremacists, and fight against them every day. At the same time, we believe that even odious hate speech, with which we vehemently disagree, garners the protection of the First Amendment when expressed non-violently. We make decisions on whom we’ll represent and in what context on a case-by-case basis. The horrible events in Charlottesville last weekend will certainly inform those decisions going forward.