Free Speech Conundrums

A friend of mine–a very thoughtful observer of American life and culture–asked for my opinion of the ACLU’s reported decision not to represent Charlottesville protestors alleging violation of their free speech rights if the “speakers” were armed at the time.

I haven’t seen a detailed statement to that effect, but based upon what I know, I agree with it.

When I teach the free speech clause, I tell students it requires distinguishing between speech—defined as the transmission of an idea—and action. The government cannot prohibit or punish the articulation of a message; it can, however, justifiably prohibit or punish harmful actions.

It isn’t always easy to draw the line, to identify when a message or idea becomes something else.

I illustrate the dilemma by giving students a number of “scenarios” requiring that they  decide whether something was speech or intimidation, speech or fraud, speech or harassment, speech or the first step in commission of a crime ( the RICO arguments).

Assume that a 6’4″ muscular body builder tells a hundred pound 5’1″ woman “If you don’t let me [fill in the blank], I’ll beat you so badly you’ll be unrecognizable.” Assume, also, that he does nothing more–doesn’t lunge toward her, or otherwise make menacing moves–has he simply exercised his constitutionally-protected freedom of speech? Or is he guilty of threat and intimidation?

What’s the difference between a labor union picketing a store by marching on the sidewalk with placards, and anti-choice activists coming into a residential neighborhood with bullhorns and screaming from 2:00 a.m. to 7:00 a.m night after night in front of the home of the Director of Planned Parenthood? (True story.)

Can we draw a distinction between the speaker who says “I think we need to overthrow the government, and this is why,” and the one who tells a group of angry citizens “I’ve got the rifles outside in my truck! Everyone who’s with me come and get one and we’ll march on City Hall right now!”

As they used to say on Sesame Street, one of these things is not like the other. And by and large, the courts have understood the differences.

So I agree with the ACLU’s decision. (I am surprised; it seemingly breaks a long tradition of ACLU First Amendment absolutism.) In the real world, racist speech by an armed and confrontational White Supremacist crosses the line from protected expression to  criminal intimidation.

Permit me to offer an (admittedly imperfect) analogy: the ACLU supported the Supreme Court’s decision in Citizens United. I tend to be a free speech purist, and in the abstract, I agreed with the reasoning. But in the real world, that decision gives the rich and powerful permission to corrupt the political process and drown out the speech of others. I agree with former Indiana Supreme Court Justice Ted Boehm, who once told me that the original legal error, in his opinion, was Buckley v. Valeo’s equation of money with speech. I also agree with former Representative Lee Hamilton, who has said that the Supreme Court doesn’t need more Justices who graduated from Harvard Law; it needs more Justices who’ve run for County Sheriff.

The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive. However, it does not protect actions that government can properly forbid, merely because those actions are accompanied by–or accomplished through–the spoken word.

It isn’t always easy to tell the difference, and we may not all agree on where the line should be drawn, but we have to draw it.


  1. I agree with Justice Boehm. Allowing money to be equated as speech, weaponizes speech creating an uneven playing field tipped to that side. Much the same as showing up with body army and weapons weaponized speech in Charlottesville, VA.

  2. Another way to argue that the ACLU’s position is justified is to use the argument Karl Popper once made about toleration. He said if you tolerate anything, some people will take advantage of that attitude and do whatever they want. And that is justification for not tolerating tolerance.

  3. Quite a conundrum indeed! There will always be those who try to game the system, regardless of how the system is structured. As disgusting as the alt-right is, they do have a right to express their opinions. Is it expression or a threat if someone shows up at a rally with a firearm? What if they hold their firearm in their hands as opposed to it being slung over their shoulder? If it’s in their hands, is that more of a threat? Is intimidation without action still an action?

    There are certainly more questions than answers. And who gets to determine the answers?

  4. Trump raised the point that Nazi, etc. marchers had a permit. How do local authorities distinguish before issuing a permit, which in some way could be seen to legitimize the action?

  5. How explicit, permissive and limited were those permits for the neo-Nazis, White Nationists and KKK rallies and marches? The permit was for Emancipation Park; did going beyond those borders negate the permit? The two protest groups also had permits for two other park area; the vehicle attack occurred after the rallies when groups were on public streets walking away. Did they apply for legal assistance against the racist groups…if not, should they?

    Our “freedom of speech”, like much of the Constitution and Amendments, is open to interpretation…a sticky situation. Rather like deciding what is pornography and what isn’t.

  6. Dr Kennedy, is there an easy study guide for the Constitution? And do you think enough states will gather to call a Constitution convention?

  7. As usual, Sheila, you nailed it. You effectively communicated what I have often believed, but struggled to communicate because I’m not as smart as you. 🙂

  8. What about a Presidential candidate who offers to pay the legal costs of anyone who commits violence against a protester at his political rally. Appears to be a RICO violation to me.

  9. Isn’t there a law against “inciting to riot”?

    When a group marches down the street holding torches, waving Nazi flags, and yelling insults to Jews and others, could that be interpreted as inciting to riot? What if the next day that same group marched and rallied shouting more insults and generalized threats as they brandished weapons? And then a different group marched out to oppose the first group; they too carrying weapons. And, bingo… riot. And one of the first group sneaks off, gets his car and drives it into the opposing group killing one and injuring many others.

    Where does freedom of speech end as inciting to riot begin? Who is responsible for such an event? Where members of the first group legitimately expressing their right to free speech, or were they intentionally using their words and actions to get a violent response, which they were prepared for by bringing weapons to the rally?

  10. “The First Amendment protects the exchange of ideas, no matter how pernicious or hurtful or offensive.”

    The government protects free speech, but apparently, they can use corporations to filter free speech on social media and even the broader internet.

    While all these “protests” take place across the country, Google has been implementing its new policies which have demonetized alternative media voices on the right and left.

    Technically, since Google is a private company, it can do whatever it wants. However, if these new policies leave intact legacy media like WaPo and Times, then we have computers censoring dissenting voices. In other words, we have corporate players doing the dirty work for our government and it’s legal??

    It’s called Fascism in my book.

  11. The danger in a Constitutional Convention at this point in time is the majority will be underrepresented and vice versa, thanks to the Electoral College and Gerrymandering. This is truly a be-careful-what-you-ask-for situation as the attendees could re-write entirely our current Constitution.

  12. There is a virtue in restricting free speech: finding one’s self without the freedom to complain, one might actually DO SOMETHING. It can be argued that free speech is a tyrant’s clever device that favors and enables the status quo, because constant venting depressurizes and de-energizes any movement toward revolt.

  13. Yesterday I happened to run across a news article that highlighted this ACLU conundrum — — and I’m glad to read the thoughts from an individual, Sheila, who has experience as an ACLU lawyer.

    For me, arriving at a protest event armed with a weapon seems to be the separating/dividing mark. And, then again, I read today about a 30-year-old man who arrived all on his own at an Indianapolis City Park armed with weapons, two hammers, designed to destroy a monument, actually a grave marker for 1600+ Confederate soldiers who died while POW’s in the Union’s Camp Morton located in Indianapolis. What to do, what to do?

  14. The critical reasoning in favor of the ACLU’s decision is that violent action or the threat of it is tied to the right to free speech and utterances of ideas. The philosopher Rawls once said that the only thing worse than having one’s rights removed is having one’s rights to do anything about it removed. Free speech, important as it is, must be looked upon not as in isolation, as in a famous jurist’s note that “One has no right to yell fire in a crowded theater.” I support the ACLU’s balanced decision not to approve free speech as generally understood to those holding rifles, the equivalent of yellin fire in a crowded theater.

  15. Thinking that I’m a reasoned and fairly thoughtful observer of human history, I’m concerned that a 30-year-old man walked into an Indianapolis City Park yesterday with a couple of hammers and proceeded to attempt an arbitrary destruction of a monument that happens to be a grave marker for 1600+ Confederate soldiers who died while prisoners of war in the Union prison camp, Camp Morton, here in Indianapolis. What was he thinking? Did he attack this marker simply because he saw ‘Confederate’ mentioned on the marker? Did he not bother to read the inscription on the marker? Did he even care?

  16. Governance is one of the most difficult challenges required of the human race. Every detail policy effect on every citizen in every circumstance must be a consideration and that’s just for domestic policy.

    People who accept the challenge of that responsibility must be the most capable among us by fat and over our history democracy has, on the average, chosen people of adequate caliber. The system has worked until now.

    The current circus in DC demonstrates compellingly what happens when the system fails and we turn over policy making responsibility to people incapable by experience, personality, temperament, moral fiber, diplomacy, education, collaborative capabilities, breadth of perspective or creativeness in problem solving the reins of government. Everything becomes at risk.

    We simply have to diagnose and repair what led democracy to this dysfunction. We cannot afford to risk it ever happening again.

  17. If a state or municipality says “no weapons allowed in the park, or on these streets during the rally”, and refuses permits for anyone armed with anything – that ruling doesn’t single out a special group, so it isn’t discriminatory. You’d need metal detectors, and people to take clubs away, to enforce it. But does it run up against the 2nd Amendment? After all, Congress, the Supreme Court, and courts of law around the country don’t allow weapons carried by the public in their buildings. Here’s a good link for a layman’s analysis of “free speech”.

    As to Larry’s comment about free speech being ‘venting that a tyrant could use’, one could say the same thing about elections. Elections are simply institutionalized revolutions. While elections can work with free speech to help bleed off the desire for violent revolution, they are at the same time, both tools for engineering revolution on some level, every 2, 4, and 6 years. Sometimes you get the revolution you want, and sometimes you don’t. Every group in power knows they may not be in power next time around. While I think it is dangerous when the swings of the power pendulum get this extreme, it may be more dangerous when the swings are hardly perceptible, and the people lose their freedoms and rights because no one is noticing that they’re quietly being extinguished. All those years when “everyone” accepted Jim Crow laws, assaults on the rights of Native Americans, or women – as rough as this is, a whole lot of people are engaged and not giving up.

  18. @Joslyn, picking up on your final sentence where you mentioned the rights of Native Americans and women, I’m thinking you might wish to get on over to the Keystone Arts Theater at Keystone at the Crossing Mall and catch a showing of ‘Wind River’. It’s a powerful film that highlights a little-known fact that one in four of every Native American woman who goes missing is never found, is never accounted for in any way.

  19. In addition to money is speech we have accepted that corporations are people under the first 10 amendments, No wonder we are screwed up.

  20. Philip K. Howard wrote two books that explain, at least to me, what has happened to our society. The first was “The Death of Common Sense”, and the second was “The Lost Art of Drawing the Line”. During the 1980’s, when my children were in high school, I watched the public schools descend into a “zero-tolerance” fantasy that eliminated judgement (common sense) from the ways schools dealt with infractions, in favor of a rigidly constructed rule book–almost like the ridiculous, ever expanding, “coding” schemes the medical profession uses today to bill for procedures. The same thing has happened with our politics. Have we so lost our sense of judgement that we can’t tell where the line lies for what is acceptable behavior anymore? Do we learn nothing from history? Permit or not, the white supremacist mob carrying torches, firearms, clubs, and knives, and openly shouting their hatreds, is the equivalent of the street Nazis in the 30s, and the antifa is the equivalent of the communists in those same streets. Common sense says that in Charlottesville, the former was much more of a threat than the latter, but also that the two should not be allowed within a mile of each other, and that any show of intimidation or violence should not be tolerated. Free speech is great, but speech that incites to violence or is used to intimidate is an action that should put its purveyors in quarantine till they cool off. Using judgement by officials to make such decisions will not always lead to a correct outcome, but it is better than the constant and time-consuming attempts to adjudicate everything within a legal framework.

  21. @David Stocum, thank you for posting the most logical and reasoned post I’ve ever read on this particular blog.

  22. The NRA and it’s adherents along with 2nd Amendmenters have pushed the gun envelope so far to the extreme, the ACLU was forced to draw a line.

    The moron who occupies the WH is being sued in court for urging followers to commit violence on protesters, then tells cops to rough up prisoners by banging their heads on police car doors. Drumpf isn’t capable of dialing down violence.

    Our last hope is America’s courts.

  23. Thanks for clarifying this issue. Very helpful. It did raise another question – given that the State of Virginia is an ‘open carry’ state for armaments, does that necessarily require bearers of arms to be more careful in their speech?

  24. BSH @ 11″53 a.m.; I have asked the same question, E-mailed Matthew Tully this morning after reading that article. Although I shudder to think that Trump said anything I could agree with or find logical or intelligent; his reference to George Washington and Thomas Jefferson as targets because they were slave owners, were among my first thoughts when this new mess began. The fool in Garfield Park and a Star editorial by James Glass on July 8, 2017; “Tech H.S. has long, rich history” remind us that we have possible targets here. The Civil War Barracks and the Arsenal at Tech High School are listed on the National Register of Historic Places. The statues on Monument Circle and so many other historical memorials in this city and state; some dating to long before the Civil War could easily become targets.

    I get arguments when I have said that the statue of Gen. Robert E. Lee is as much a part of our history as it is of the southern states. The Confederate States of America (never recognized as a nation by any other nation) were Democratic southern states fighting to rule themselves by States Rights against the northern Union, the Republican United States of American. No matter how you try to cut it; today it is the southern Republican United States of America fighting to rule themselves by States Rights against the northern Democratic United States of America. Americans again fighting Americans.

    How far with this destruction of war memorials go and when will it end…WILL it end. The Jews do not want the Holocaust memorials in Europe destroyed; they are reminders of what can happen again if we forget.

  25. More important than arguing for the ACLU’s current position [which is standard High School Civics in my mind…] is to understand and explain the fact that it is a second position by ACLU…a corrective[?] to the initial announcement that the ACLU would be representing Jason Kessler, organizer of the Unite the Right demonstration in allegations that the Government had violated his Constitutional Rights in some manner merely by attempting to change the venue of the demonstration when it became apparent that MORE than the four hundred projected demonstrators would be attending…

    The fact that a Lawyer, the Director of the ACLU, would make such a muddled and linguistically ignorant statement that would have to be corrected a day or two later [OMG…Is the ACLU pulling a Trumpish stunt? We will only know if they try to justify and say that they were right all along and it is we who are confused…] is disturbing…frightening… The spector of a Mendacious ACLU is the material of a darker horror than the light of that parade by the TiKKKi Torch Nazis…

    The fact that the ACLU seems to be back in Skokie and NOT aware of the changes and differences that make a difference… The fact that they were initially acting in a knee-jerk “mere speech” understanding of the Constitutional Right and NOT doing enough to accertain the nature of the Speech of the Unite the Right demonstrators/organizers… The fact that Anthony D. Romero’s statement as ACLU Executive Director has some rather fishy “blame the victim” rhetorical moves as he burnishes ACLU’s record [in order to hide behind it…] The fact that there seems to have been internal disension and a back-pedaling/corrective action taken which is NOT admitted and explained with a disturbing lack of transparency… All of this goes to show that the ACLU has been “coasting” on its laurels…and NOT growing and maturing as is required by the changes and differences in our world.

    As an undergraduate at the University of Maryland College Park in the 1980’s it was possible to learn about all the different sorts of Speech – Descriptive, Prescriptive, Performative etc. etc. etc. – and to begin to develop a post-conventional non-naive understanding of how humanity uses Language/Speech to shape our world. The possibility that the Executive Director of the ACLU has and is acting upon an eighth-grade, conventional misunderstanding of Speech is appalling…and calls for a “vote of ‘No Confidence'” in Romero and his stale, compromised leadership…

    I suggest that the ACLU is in desperate need of some soul-searching and some “growing up” work… Of course, this will be hard because they will also need to continue to do all the work that they are ordinarily called upon to do as well… But NO COMPLAINING… This is what it is to be a “grown up”… It’s to be “in over our heads” and struggling to keep our noses above the mess as we do our darnedest to deal with it…

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