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Freedom of Hate

Torches burned the sky as white nationalist protests echoed throughout the University of Virginia, shouting “Jews will not replace us; white lives matter; blood and soil.” All the while, though, the Ku Klux Klan’s (KKK), a white supremacist hate organization, right to protest has remained constitutionally protected.

          Typically a peaceful college town, the city of Charlottesville, Virginia, became the epicenter of an incendiary display of violence and hate that led to the death of one peace protester and has shaken what many Americans presumed about racial equality in the United States. Many questions remain in the minds of Americans: “What motivated such hateful acts?”,“Will this only lead to more violence?” and most prominently, “In light of all the hate, how is it that the KKK’s right to protest has remained legally supported?”

As nearly half of the students in a Westerner survey of 190 responses agreed that the KKK should not have been allowed to protest, this question certainly proves to be pressing. To answer it, one must review the First Amendment of our constitution.

In short, the law grants free expression of ideas and speech to citizens of the United States, so long as it is not likely to incite or produce imminent law violations. It is under this nuanced exception that hate groups are allowed to chant for the death of others legally.

Director of Communications and Public Policy at American Civil Liberties Union of Illinois, Edwin Yohnka, recognizes the difficulties of upholding this legal distinction. In a Westerner interview, he explained,“What is legal is defined not by its content, but by whether or not there are accompanying direct threats and whether those threats lead to violence.”

In regard to the protests that weekend, the speech was deemed legal as the violence was not consequential of the hateful rhetoric. Although violence did occur, it did not result specifically from the speech. To the law, the difference between saying “Kill all Jews” and “Kill that Jew” can be the determining factor between innocence and imprisonment.    

That said, many members responsible for upholding legal precedents, such as those at the ACLU in Virginia, are often placed in a dilemma between supporting their personal beliefs and their greater constitutional rights. It is for this reason that, after the events in Charlottesville, a board member of the ACLU in Virginia went so far as to resign, later posting to their Twitter that “I won’t be a fig leaf for the Nazis” and cover up their hatred.

Yet, despite this, the importance of maintaining legal precedent, according to Yohnka, prevails. He reasons that it is necessary to support the free expression of all non threatening speech even if it is hateful; if this type of speech is suppressed, he says, the laws that work to suppress it just might work to limit speech we perceive to be positive as well.    

Helping to support these decisions, is the distinction that what is legal is not necessarily moral. “There’s the moral aspect and then there’s the legal aspect, and we’re talking about the legal aspect here. Legally, it’s acceptable. Morally, now that’s a totally different discussion,” AP Government teacher Daniel Fouts explained.

 Though legal support groups may not be able to prevent hateful speech, they do possess the responsibility to make sure that they represent protests that are not likely to result in violence. This logic is the primary motivation behind the recent statement from the ACLU that they will no longer stand with hate groups seeking to march with weapons, as some of those in Charlottesville did.

As the political climate grows more polarized and more hateful speech is spread, Yohnka reflects that “We must be mindful of what particular groups are, what their history is and ensure that we know that their speech will not be met with violence.  These are things that we have always done, just with more sensitivity now than before.”

Brandenburg V. Ohio

The case began in 1964 when Klu Klux Klan leader Clarence Brandenburg spoke to an audience of white extremists, regarding racial minorities with violent and hateful slurs. Though unlikely to cause immediate harm, Brandenburg was later convicted under Ohio state law for his advocation of violence. Disagreeing with this decision, he argued that the charge violated his First Amendment right to the freedom of speech. The case was taken to the Supreme Court where the justices would rule in the favor Brandenburg, ultimately determining that the legality of inflammatory speech is defined not by violent language alone, but by the encouragement of “imminent law violation.” Brandenburg was found not guilty, as his hateful speech did not incite imminent harm.

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