Saturday’s ugly events in Charlottesville culminated in a neo-Nazi protestor plowing his car into a crowd of his adversaries. He allegedly killed Heather Heyer, a young woman who had been excercising her right to free speech. Attorney General Jeff Sessions is rightly giving a high priority to the investigation, and President Trump has finally gotten around to issuing a proper condemnation of the white nationalists who brought their hate-fest to Charlottesville.
Yet beyond this, Saturday’s events represent a serious failure of government. Neither the death of Heyer nor the general mayhem were inevitable. They could have been prevented if authorities there had confronted the situation sensibly.
The first failing was that of Virginia Gov. Terry McAuliffe, Charlottesville Mayor Mike Signer, and the police in failing to separate the Nazis from the counter-protesters who showed up to meet them.
Ahead of the event, the Washington Examiner‘s Tom Rogan warned against the city’s attempt to relocate the Nazis from their desired place of protest. He pointed out that the more sensible course would be to allow them to protest in Emancipation Park as a way to contain them and keep the counter-protestors away from them.
The authorities instead chose to allow the warring factions to intermingle, with predictable results. Charlottesville became a small war zone. Making matters much worse, the police were apparently ordered to stand by as the various factions beat each other bloody.
Speaking to the New York Times, Gov. McAuliffe offered several pathetic and nonsensical excuses. First, he claimed the Nazis “had better equipment than our State Police had,” which they did not. Second, McAuliffe claimed the police chose not to stop the violence because “it was a volatile situation.” But that is exactly the sort of situation where police should intervene, given that protection of citizens is the main reason police forces exist. Finally, in a stunning denial of reality, McAuliffe asserted that “from our plan, to ensure the safety of our citizens and property, it went extremely well.”
Still, this wasn’t the only government failing in Charlottesville. The second failing was epitomized by what happened on Sunday, when Nazi organizer Jason Kessler attempted to give a press conference. Once again, the police failed to separate Kessler from counter-protesters, and he was punched in the face. His attacker, Jeff Winder, justified his actions, staying, “Jason Kessler has been bringing hate to our town for months and has been endangering the lives of people of color and endangering other lives in my community. Free speech does not protect hate speech.”
Rather than condemn Winder’s violence as an assault on democracy and a violation of Kessler’s civil rights, McAuliffe and Mayor Signer tried to justify it. Beyond the perfectly appropriate expression of abhorrence at the Nazi protesters, they embraced anti-free speech rhetoric, and did so well before any violence had begun.
McAuliffe argued, “To the white supremacists and the neo-Nazis who came to our state yesterday, there is no place for you here.” Speaking with Black Lives Matter activist Deray Mckesson, McAuliffe doubled down. “There’s no place for them in this country. I think it’s important that every elected official stand up, call it what it is. We will not tolerate white supremacy, we will not tolerate these Nazi groups.”
Similarly, Signer had already declared Friday night’s peaceful protests as “tantamount to terrorism,” adding that “we have to turn the corner on the mainstreaming of this kind of language and thought in our country.”
McAuliffe and Signer are wrong. Free speech protections do cover hate speech. It is not for the government to decide between one form of speech and another and withdraw protection from that which it finds too objectionable. The Supreme Court has firmly established that beyond protecting the practice of lawful speech, American government has no role in defining its value. As Justice John Marshall Harlan wrote in the 1971 case Cohen v. Calfornia:
“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”
Even more on point is the 1977 Supreme Court decision regarding the First Amendment right to assemble. National Socialist Party of America v. Skokie specifically dealt with a planned neo-Nazi march through a town on Chicago’s North Side populated by many Holocaust survivors. The ACLU argued, on behalf of the Nazis, that Chicago and Illinois authorities had no business preventing the group from marching, nor from wearing Nazi uniforms, nor from prominently displaying the swastika.
The high court remanded the case with a stern warning against state-imposed restraints on free speech and assembly. Among the arguments ultimately rejected in this case was one commonly heard nowadays that certain types of speech (in this case the swastika) are so hateful as to constitute an actual threat of violence or “fighting words.”
Nazism is a despicable ideology that America and her allies crushed at the cost of millions of lives. But beyond unlawful violence (which, as Justice Harlan would have said, is conduct, not speech), or the deliberate incitement of imminent violence that is likely to occur (Brandenburg v. Ohio), Nazis have the right to speak their minds in America. Those counterprotesters carrying banners declaring “no free speech for fascists” are, then, making an argument that has been clearly rejected by the Supreme Court.
Free speech is a feature of the Allied victory over Nazism, not a bug. It also means that those who showed up to protest against white supremecists in Charlottesville have the right to do so.
But McAuliffe and Signer failed in their responsibility to defend Heather Heyer and Jason Kessler from violence and to preserve freedom of speech. They seem to want to camouflage their failures with ringing denunciations of white supremacists. Disgust with those white supremacists should, however, be a given in a liberal democratic society. It doesn’t exculpate incompetent government leaders when they fail in their pre-eminent duty to keep citizens safe.
