The Problem of Content
Discrimination
Much of American free speech law is premised on the
principle that government—whether it is the executive branch, the legislature
or the courts—cannot make distinctions based on the content of someone’s
speech, especially if the distinction is based on preferring one point of view
over another. Thus, although the views the white supremacists espoused in their
August marches were as wrong and false as they were offensive, American free
speech law reflects what Supreme Court Justice Lewis Powell observed in a 1974
libel case: “Under the First Amendment there is no such thing as a false idea.”
The opening qualification of this pronouncement is
important. Justice Powell was no relativist or post-modernist. He believed
there were true and false facts, and true and false ideas. But he believed as
well, along with his Supreme Court colleagues, that the dangers of allowing
officials to determine the truth or falsity of expression outweighed the
dangers stemming from the proliferation of false facts and false ideas.
Here again reasonable minds and reasonable nations have
disagreed, but the aversion to content discrimination remains firmly embedded
in American constitutional law. However false and harmful white supremacist
ideology is, American free speech doctrine worries even more about granting
officials the power to determine which ideas are false and which are harmful.
If today’s officials can suppress coalitions on the right, then tomorrow’s will
have the power to suppress a united left. Republicans in power would be able to
suppress Democrats, capitalists would be able to suppress socialists, and vice
versa, depending on how the political pendulum swings or the wheel of the world
turns.
Or at least so American law has long held. Other countries
are not nearly so worried about the discretion of officials to determine the
falsity of white supremacy or the harm of anti-Semitism, but the American
approach—encapsulated by the phrase “content discrimination” and the
traditional American fear of it—is to the contrary.
The Public Forum
Leading up to the August Unite the Right rally, the city
tried to relocate the planned demonstration away from Emancipation Park
(formerly Robert E. Lee Park) downtown to McIntire Park on the north end. More
than content neutrality came into play to thwart the attempt. The city also had
to overcome the strong constitutional protection of a “public forum.” Although
the city owns Emancipation Park, the Supreme Court has held since the 1930s
that municipal authorities cannot close streets, sidewalks and parks to
parades, picketing, demonstrations or other forms of speech. When the
journalist A.J. Liebling observed a century ago that “Freedom of the press is
guaranteed only to those who own one,” he reminded us that free speech requires
not only a speaker but also the resources to make that speech possible. The
same holds true for picketing, parading, rallying or demonstrating, all
considered forms of speech. The participants need the physical space to perform
their activity, and so the First Amendment requires the authorities to keep
public sites open to them.
This mandatory right of access is not absolute. Cities may
adopt reasonable “time, place and manner” regulations, but such regulations
must be content neutral. Charlottesville may regulate noise levels, time of day
and size of crowd, for example, but it must do so without regard to the views
of the speakers. Thus, when U.S. District Judge Glen E. Conrad ruled that the
organizers of the Unite the Right rally could not be compelled to move their
event to McIntire Park, he based his ruling in part on the fact that only the
Unite the Right demonstrators, and not those who were demonstrating against
them in other parks, had been asked to move. For Judge Conrad, the city had
drawn a distinction based on the views expressed and thus violated the First
Amendment in a way that an order to move all the demonstrations would not have.
The recent Charlottesville events bring these difficult
questions to the fore, and existing law provides little guidance.
The arrival of torch-carrying neo-Nazis to Grounds Aug. 11
presented a more nuanced public forum issue. As a public institution on state
land, the University’s open spaces are subject to the First Amendment, but they
are also subject to regulation, so long as it is content-neutral regulation. As
such, the open areas on Grounds can be considered “limited purpose public
forums.” The administration may, for example, limit the use of its property to
those who have some connection to the University, but it cannot favor certain
connections over others based on a group’s views or politics. So it was that
the University found itself forced to allow demonstrations by those whose views
essentially the entire University community found abhorrent.
Since then, the Board of Visitors has put tighter
regulations in place, including reclassifying the Academical Village as a
“facility,” subject to a permitting process and firearms prohibitions. In
enforcing those rules, the University will need to treat all would-be
demonstrators alike, regardless of whether their grievance is anti-Semitic,
anti-Trump, anti-war, pro–civil rights, or even anti–the serving of meat in
University cafeterias.
The Problem of the Hostile Audience
The Unite the Right protesters drew counterprotesters or, in
the parlance of First Amendment analysis, the speakers drew listeners. The
clashes that ensued between them raise the constitutional issue of the “hostile
audience.” Before the civil rights and anti-war demonstrations of the 1960s,
the solution was to restrict speech likely to spark violence between speakers
and audiences. Since the 1960s, courts have rejected that approach as
empowering a hostile audience to silence contrary but protected speech, known
as the “heckler’s veto.” Courts and law enforcement alike now accept that their
first responsibility is to protect speakers exercising their First Amendment
rights, even if the rights being exercised are racist or otherwise hateful and
harmful.
Although the law is now clear about the initial
responsibilities of officials and law enforcement, it is less clear about when,
how and on what basis authorities can step in to restrict the speaker or force
an end to a previously constitutionally protected event. When we learn that
University of California, Berkeley recently spent almost $2 million to protect
just two highly controversial right-wing speakers, and that it cost
Charlottesville more than $30,000 to provide law enforcement and related
services for the July Klan rally and another $70,000 for the Unite the Right
rally on Aug. 12, we wonder just how much a city, a state or a university is
required to do. Must they call upon the state police before disallowing or
closing an event? Must they ask the governor to deploy the National Guard? How
quickly can they close an event when actual violence seems imminent? There is
also an evidentiary issue: Can a speaker’s past record of inciting violence be
used to restrict the person’s upcoming appearances in a way that would
otherwise be impermissible?
The recent Charlottesville events bring these difficult
questions to the fore, and existing law provides little guidance. The issue is
not only with First Amendment doctrine, however. It lies as well with the
unwillingness, appropriate or not, of courts, law enforcement and universities
to impose harsh punishments on those who attempt to restrict hateful groups
from exercising their First Amendment rights. As long as that is the case,
there is little reason to believe that the problem of the hostile audience will
disappear. (My emphasis)
Short of an openly hostile audience, there are also cases
where the interaction with speakers is less violent but nonetheless
interfering. Counterprotesters can assert a heckler’s veto in nonviolent ways,
such as using drums or horns to prevent speakers from being heard, or with
attempts to block speakers from reaching the location designated for their
speech. Should such actions be applauded as part of the civil disobedience
tradition? If so, should those who interfere be willing, as so many civil
disobedients have been, to accept their punishment? Or should such actions,
even if technically legal, be condemned as attempts to interfere with someone’s
free-speech rights? And have we achieved a fair balancing of interests between
offensive speakers and offended listeners if we refuse to prevent even the most
unacceptable of words and ideas from being heard?
Speaking About Speech
The point of the First Amendment is in part to encourage
dialogue, but ironically and regrettably, we seem to have little serious public
dialogue about the First Amendment. Those who oppose this or that speech
restriction parrot standard platitudes, such as “The remedy for bad speech is
good speech,” without stopping to consider whether this proposition is actually
true. On the other side, those who favor restrictions trot out Oliver Wendell
Holmes’ 1919 observations that speech can be restricted when there is a “clear
and present danger,” and that no one has a right falsely to shout “Fire!” in a
crowded theater, all the while ignoring almost a century of legal
embellishments and qualifications on what were originally little more than
offhand remarks. And as the opposing parties hurl hackneyed slogans at each
other, we find little serious public thought about the values of freedom of
speech and the qualifications that should be imposed on it.
The problem is exacerbated by the all-too-frequent failure
to distinguish what the law is from what it should be. It is entirely
appropriate to consider what is wrong with the existing constitutional law of
the First Amendment, but students, faculty, staff and administrators at a state
university remain subject to the law as it exists, warts and all. We should
recognize that officials have the obligation to follow the law, even when they
disagree with it. We should also recognize, however, that just because the law
is the law doesn’t make it immune from criticism or change.
(Frederick Schauer ; David and Mary Harrison Distinguished Professor of Law at the University of Virginia) 
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