Controversial Speech, the Public Interest, and the First Amendment

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The recent attack in Charlottesville called the attention of the American public to the dangers posed by radical ideologies. This tragedy, spurred by the vitriolic vituperations of white supremacist groups, forces our nation to reevaluate the delicate balance between the individual right to free speech and the community's interest in protecting its own safety and morals. Yesterday, Virginia governor Terry McAuliffe issued a temporary moratorium on all demonstrations on the subject of historical Confederate monuments. Though the measure is clearly intended to preserve the peace and forestall further violence, the legality of this action has been called into question.

The anarchic atmosphere of the neo-Nazi rally, coupled with the conduct of some counter-protestors, renders the situation highly volatile, and the possibility of clashes between these groups could be labeled a "clear and present danger." This test for determining the permissibility of controversial speech originated during the First World War, when many socialist groups resisted the war effort. Charles Schenck, a prominent syndicalist, was charged with "causing insubordination" after circulating a pamphlet urging young men to dodge the draft. His conviction was upheld upon appeal; as Justice Holmes famously wrote when condemning his actions, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenck v. United States, 249 U.S. 47 (1919), see also Debs v. United States, 249 U.S. 211 (1919), and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). As the inflammatory rhetoric of the Charlottesville demonstration already resulted in a car attack the following day, McAuliffe's proclamation is lawful under this doctrine.  The jurisprudence of the next hundred years, however, shows a steady rejection of the Schenck test. Less than ten years later, in Whitney v. California, Justice Brandeis wrote for the Court in overturning the sentence of another syndicalist, and cited Thomas Jefferson's renowned remarks upon the First Amendment to support his reasoning: "We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge." 274 U.S. 357 (1927). In 1943, the Court set forth in West Virginia v. Barnette: "We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes... Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." 319 U.S. 624. See also Gitlow v. New York, 268 U.S. 652 (1925), and Brandenburg v. Ohio, 395 U.S. 444 (1969). 

This restriction on debate over the legacy of the Civil War is somewhat ironic in light of the diligent protection of fundamental freedoms throughout the conflict itself. In 1864, U.S. citizen Lamdin P. Milligan was charged with conspiracy and treason and sentenced to death under the system of martial law currently in place in Indiana. At a military trial, it was proven that Milligan advocated resistance of the draft and was a member of an organization (commonly referred to as the "Copperheads") sympathetic to the Confederacy, but it could not be demonstrated that he had engaged in any criminal activity. After his conviction he applied for a writ of habeas corpus, and his case made its way to the Supreme Court the following year. In a landmark opinion, Justice Davis nullified the result of the court-martial and stressed the immutability of the Constitution's guarantees:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances... If society is disturbed by civil commotion - if the passions of men are aroused and the restraints of law weakened, if not disregarded - these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution." Ex parte Milligan, 71 U.S. 2 (1865).

The liberty of free speech and expression remains one of the most important and unique American values. Though white supremacists have attempted to subvert our framework of freedom and equality, our democratic government cannot allow the actions of a faction to induce the silence of the majority. Citizens must be allowed to form their own conceptions of our national and regional heritage, and to share those opinions in a lawful and orderly manner. This right is the very bedrock of our pluralist society

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