The Saturday, August 12, rally, which led to the deaths of Heather Heyer and troopers Jay Cullen and Burke Bates, ignited a national debate on free speech, the scope of the First Amendment and the ramifications of private employers terminating employees who support fringe political groups.
The American Civil Liberties Union, which boats a nearly century-long defense of the First Amendment, released a statement supporting the right of non-violent protestors to make unpopular, racially-charged comments.
ACLU Executive Director Anthony D. Romero enumerated the organization’s reasons for defending free speech even when it is inflammatory on the ACLU website. "… There are important reasons for our long history of defending freedom of speech—including speech we abhor,” he said. “We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it."
Further, he added it is unacceptable for the government to stifle protest based on “the threat of violence.”
“[That] cannot serve as the government’s carte blanche to shut down protests,” he wrote. “If that were the case, governments would almost always be able to shut down protests, even when the protesters themselves are peaceful, because others could exercise a heckler’s veto through violence or the threat of violence.”
However, subsequent comments from several local directors in California caught the attention of at least one law scholar, who found a joint statement generated on the West Coast, and endorsed by the national ACLU, as “odd.”
Eugene Volokh, a professor at the UCLA School of Law, questioned in his Washington Post blog, The Volokh Conspiracy, why the executive directors of Northern California, Southern California and the ACLU of San Diego & Imperial Counties would release a statement specifically condemning violence as a form of free speech since that is already widely-accepted legal doctrine. Rather, he wonders why they did not address how the groups will approach potential legal action against government officials stunting future rallies.
Abdi Soltani, executive director of the ACLU of Northern California, Hector Villagra, executive director of the ACLU of Southern California and Norma Chávez-Peterson, executive director of the ACLU of San Diego & Imperial Counties emphasized the ACLU looks at requests for help on a “case-by-case basis” and expressed concerns about events planned in California.
“If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution,” they wrote. “The First Amendment should never be used as a shield or sword to justify violence.”
Volokh took issue with the lack of clarity regarding the ACLU’s willingness to defend the white supremacists right to assemble in the face of their rally permit being revoked and questioned the likelihood protestors will, in fact, realistically be able to attend “armed to the teeth.”
“The question facing California government officials, as I understand it, is not whether to allow violence or constitutionally unprotected incitement,” he said. “Rather, it’s whether the government can ban events — of whatever political stripe — based on a fear that the speakers or some of the attendees may engage in violence.”
Under “modern” doctrine, the answer is generally “no,” he said.
Volokh also addressed another ripple generated from the supremacy rally’s proverbial stone in the pond- employee termination. While government employers cannot terminate employees for exercising free speech, it is less clear in which circumstances private employers can move toward termination, he wrote.
Information about protection for public employees can be found here.
Some states and municipalities have statutes addressing employee protections based on political activity. Federal employment laws protect against discrimination based on religion, sex, race, age and other traits, however, political affiliation is not mentioned, according to information from Volokh.