Charlottesville set up a conflict between the 1st and 2nd Amendments

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A white supremacists stands behind militia members after he scuffled with a counter demonstrator in Charlottesville, Virginia, U.S., August 12, 2017. Charlottesville set up a conflict between the 1st and 2nd Amendments Charlottesville set up a conflict between the 1st and 2nd Amendments rts1bi73
Armed
white supremacist militia at Charlottesville.

REUTERS/Joshua Roberts

When U.S. District Judge Glen E. Conrad rejected
Charlottesville, Virginia’s attempt to relocate Saturday’s white
nationalist rally
, he wrote
that “merely moving [the] demonstration to another park
will not avoid a clash of ideologies” between demonstrators and
counter-protesters. He also acknowledged that “a change in the
location of the demonstration would not eliminate the need for
members of the City’s law enforcement, fire, and emergency
medical services personnel to appear at Emancipation Park.
Instead, it would necessitate having personnel present at two
locations in the City.”

As it turned out, the nightmare that unfolded on Saturday in
this small college town involved a great deal more than an
ideological clash and demanded far more police protection than
was available. Dozens of white nationalists showed up toting
semi-automatic weapons
, as did some counter-protesters,
making it all but impossible for police to intervene when
violence erupted. In short order, peaceful protesters were forced
to hide
as armed rioters attacked one another with clubs,
smoke bombs, and pepper spray.

Seen in isolation, Conrad’s order was grounded in solid First
Amendment doctrine: Charlottesville could not, he ruled,
relocate the racist demonstrators “based on the content of
[their] speech.” This is textbook law, but one is left to
wonder whether it takes into account armed white supremacists
invading a city with promises of confrontation.

Conrad’s decision seems to have been issued in a vacuum, one in
which Second Amendment open-carry rights either swallowed First
Amendment doctrine altogether or were simply wished away, for
after-the-fact analysis. The judge failed to answer the central
question: When demonstrators plan to carry guns and cause
fights, does the government have a compelling interest in
regulating their expressive conduct more carefully than it’d be
able to otherwise? This is not any one judge’s fault. It is a
failure of our First Amendment jurisprudence to reckon with our
Second Amendment reality.

Charlottesville proves that this issue is hardly theoretical
anymore. In his order, Conrad chose to exclude from his First
Amendment analysis the very strong possibility that
demonstrators would carry weapons. (The city police warned the
court
that hundreds of protesters would bring firearms and
that militia members would be in attendance.) But, ironically,
by protecting the free speech rights of the white supremacists,
Conrad may have ultimately suppressed speech by ensuring an
armed confrontation between the neo-Nazis and the
counter-protesters would break out and that police would be
powerless to stop it until blood was spilled.

Virginia Gov. Terry McAuliffe later claimed that the
militia members “had better equipment than our State
Police”—and that their weapons prevented law enforcement from
imposing order and protecting peaceful protesters. While we
don’t yet know the full details of what happened or how, the
governor’s statement suggested that the presence of large
quantities of lethal guns had in fact effectively
silenced the many people who’d assembled to peacefully
express their opposition to racism.


kkk white supremecist Charlottesville set up a conflict between the 1st and 2nd Amendments Charlottesville set up a conflict between the 1st and 2nd Amendments ap17199454767410
Klan
members salute during a KKK rally in Justice Park Saturday,
July 8, 2017, in Charlottesville, Va.


AP
Photo/Steve Helber



This conflict between the right to bear arms and the right to
free speech is nothing new, but the sudden surge in white
nationalist activism has made it painfully obvious that, in the
public square, the right to bear arms tends to trump the right
to free speech.

Confederate sympathizers are bringing
weapons of war
to their demonstrations—just last month, in
fact, Ku Klux Klansmen carried
guns
to a protest in an adjacent Charlottesville park.
Forty-five states, including Virginia, allow some form of open
carry. So long as armed demonstrators comply with their permits
and do not openly threaten anyone, their protests are perfectly
legal.

But of course, the presence of a gun itself dramatically
heightens the odds that somebody is going to get shot. And,
as Saturday proved, the presence of many guns,
particularly the sort that can kill many people in very
little time, may dissuade law enforcement from stepping in
when a protest gets out of hand. The result is an alarming
form of censorship: Nonviolent demonstrators lose their right
to assemble and express their ideas because the police are
too apprehensive to shield them from violence. The right to
bear arms overrides the right to free speech. And when
protesters dress like militia members and the police are
confused about who is with whom, chaos is inevitable.

This problem is especially acute in public areas like
Charlottesville’s Emancipation Park and the surrounding
streets and walkways. The Supreme Court recently reminded
us
that parks and sidewalks “occupy a special position in
terms of First Amendment protection because of their historic
role as sites for discussion and debate.” These “traditional
public fora” have, according
to the court
, “immemorially been held in trust for the
use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between
citizens, and discussing public questions.”

So the government doesn’t get to bar neo-Nazis from marching
in a park just because they’re neo-Nazis. But what about
neo-Nazis who are toting around assault weapons? As the world
saw on Saturday, armed agitators can quickly turn a public
forum into a public brawl and hijack peaceful assembly.
Current First Amendment doctrine praises the open debate that
is supposed to occur in our streets and parks. But it is
poorly equipped to help courts apply the law when bullets may
accompany the free exchange of ideas.

The seminal case protecting the rights of white nationalists
to march in the streets is National
Socialist Party of America v. Skokie
, in which the
Supreme Court ruled that the government could not bar
neo-Nazis from marching through a Jewish neighborhood in
Illinois.* Most civil libertarians (us included)
believe the court got the Skokie case right. But
it’s increasingly clear that Skokie can’t always
help courts figure out how to deal with a post-Heller,
post–“stand your ground” white nationalist protest. Whatever
the courts were attempting to protect in the Skokie
case wasn’t protected in Charlottesville. The marchers in
Skokie didn’t promise to bring guns and armed militias to
protect themselves.

Moreover, the “threat” posed by Nazis marching in Illinois,
while symbolic and terrifying, especially in a town of
Holocaust survivors, was not the threat that we are
coming to your town with the power to kill you
. Second
Amendment enthusiasts will tell you that they don’t intend to
deliver any message of this sort when they parade with
semi-automatic weapons. Their message is merely that guns are
outstanding. But one of the lessons of Charlottesville 2017
is that sometimes, when 500 people promise to come to a
“protest” with guns to hurt people they want to see
extinguished, they plan to do just that.

It’s become amply clear that open carry in Charlottesville
led to little discussion and lots of fighting. Indeed, open
carry seemed to guarantee that fewer people could speak and
that the police had no choice but to wait until there was
actual bleeding to call off the rally. If bringing guns to
a speech event pushes the line for incitement past the
point where people have gone mad, it’s time to have another
look at the intersection of speech and open carry.

Rallies with guns cannot be treated, for First Amendment
purposes, in the same fashion as rallies with no guns. When
the police are literally too
afraid
of armed protesters to stop a melee, First
Amendment values are diminished; discussion is supplanted
by disorder and even death, and conversations about “time,
place, and manner” seem antiquated and trite. In his
analysis, Conrad treated today’s white nationalists like
the neo-Nazis who planned to march through Skokie.*

That was a mistake. Ideas may not be able to hurt us, but
assault weapons surely can. That’s why the white
supremacists who marched through Charlottesville this
weekend carried guns instead of Pokémon cards. It’s
perfectly reasonable for courts to consider the
speech-suppressing potential of guns when evaluating a
city’s efforts to keep the peace. And it will be perfectly
lethal if they fail to take the Second Amendment reality
into account, as they reflect upon the values we seek to
protect with the First.


*Correction, Aug. 14, 2017:

This post originally misstated that Klansmen marched in
Skokie, Illinois. The marchers were neo-Nazis. (Return.)



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