Joe Bob's America

First Amendment 101

December 14, 2017

Multiple Pages
First Amendment 101

NEW YORK—It’s been a rough year for stump speaking in general, but let’s make a resolution for 2018:

We need to start listening to these White Pride guys in the polo shirts and khaki pants.

And we need to start arresting the Antifa thugs.

Liberals and conservatives alike should agree that the pattern of these events over the past year has become obvious and odious:

The Alt-Right announces a rally, demonstration or speakers program.

Their enemies organize a campaign to “disrupt” the event. That’s the word they use. It’s not counter-programming, it’s an attempt to shut them down. If it were truly a “counter-protest,” they could do it across town, at some other location, where the National Guard wouldn’t be required, or they could do it immediately after the scheduled event.

By the time the event happens, the Alt-Righters are outnumbered anywhere from ten to one to a hundred to one.

Things get nasty. It usually starts when an Alt-Right guy gets cut off from his comrades and surrounded. Somebody knocks his hat off or tries to grab his flag pole or—the biggest prize of all—seizes one of those homemade shields that are normally found only at Renaissance Fairs. If he tries to get away, the bullies lock arms and block his path, all the while screaming at him or spitting at him. They’re trying to get him to throw a punch, so they can commence a group beatdown, but since most of the Alt-Righters have prepared for this, if only in their imaginations, they simply try to push through the crowd. But since pushing through the crowd requires shoving some guy in the chest or holding him at bay with a flag pole, we end up with a YouTube video of a skinny nerd being chased through the streets for ten minutes by 30 angry guys, loaded for bear, often restrained only by their girlfriends. Blood flows.

As soon as somebody throws a punch—or hits somebody with a urine-filled balloon, because projectiles are always raining down on these guys—an illegal assembly is declared and the streets are cleared, sometimes with tear gas and rubber bullets.

Very few arrests are made, usually a couple of dozen. Ninety percent of the arrestees are counter-protesters.

Bottom line: the counter-protesters always win, because nobody ever hears the speaker.

We now know from the 220-page report commissioned by the Charlottesville City Council that, in that notorious case, the police chief decided to keep his officers behind barricades even when they could clearly see physical altercations. His theory was that the situation would get so bad he would be forced to declare an unlawful assembly and tell everyone to leave. Of his two obligations—protect free speech and protect public safety—he went 0 for 2. His only strategy was to make it end quickly.

In most cases, law enforcement ends up congratulating itself because arrests and injuries are held to a minimum.

That’s not the standard of success.

That’s the bare minimum expectation.

“Motives at political rallies are always impure.”

The standard of civic success is this: The speaker finishes his speech and everybody who wants to hear him can hear him.

If there are people present who do not want to hear his speech, or do not want others to hear his speech, and if those people take any action to make sure he can’t be heard, they need to be carted away.

Most police forces are so poorly trained that they think, if the demonstrators are speaking and not being physically assaulted, then all objectives are achieved. The fact that they’re being shouted down doesn’t seem to be on anyone’s list.

Unfortunately, police chiefs aren’t the only public officials that simply want it to end quickly. City Councils and Governors and City Managers and Mayors, faced with an upcoming Alt-Right demonstration, will almost always try to deny the permit, then force the organizers into an undesirable location, then put a time limit on them, then pass specific ordinances designed to harass them (they wanna make those pathetic Walmart tiki torches illegal!), then shut down the event on the pretext of public safety. All of this occurs without the speaker ever being heard, because, even if he manages to get his speech delivered, he’s drowned out by bullhorns and noisemakers and profane taunts in a virtual textbook case of what the ACLU calls “the heckler’s veto.”

As a result, these White Pride groups have become the Jehovah’s Witnesses of our day. The reason so many of the Supreme Court’s First Amendment decisions involve Jehovah’s Witnesses is that they were a despised minority who could be easily bullied because they were regarded as un-American cultists. (Among other things, they refused to salute the flag or let their children recite the pledge of allegiance.) The Alt-Righters are now a despised minority who can be endlessly bullied because they can be labeled “white supremacists” (some are, some aren’t) while city governments go through the bare minimum of ensuring their free speech rights.

But these people are spouting hate speech!

Yes, many of them are. That’s legal as long as it doesn’t involve clear calls for violence against the assembled crowd. All the calls for violence are coming from the other side. The number of times I’ve heard “Fuck him up! Fuck him up!” on YouTube makes me believe that this one phrase alone should be grounds for arrest.

But these racist organizations are provoking the counter-protesters by the disingenuous nature of their demonstrations and rallies!

Yes, they’re trying to provoke the left. The First Amendment doesn’t say anything about motives. Motives at political rallies are always impure.

But the counter-protesters have free speech rights too!

Yes they do, but their speech has to allow space for the guy who has the legal permit to speak that day. Their right to make noise before the speech and after the speech is absolute. During the speech, not so much. Nor do they have the right to block entry to the public square. A group of clergymen stood at the stairs to Emancipation Park in Charlottesville, locking arms so that the Alt-Right groups couldn’t get to the rally, causing a cop to say “They’re trying to take over the street!” And they definitely don’t have the right to use amplified sound to drown out the speaker.

But an innocent woman died!

Yes she did, and the unhinged extremist who did that should be treated the same way we always treat deranged terrorists. But we shouldn’t ever create conditions where those guys think law enforcement has vacated the premises. (The intersection where it happened was guarded by a single wooden sawhorse. The school resource officer stationed there had expressed fear for her safety and was told she could leave.)

There are so many Supreme Court cases dealing with this stuff—the right of unpopular speakers to use the public square—that it’s hard to choose just one, but probably the best case to talk about in this context is Kovacs v. Cooper. Charles Kovacs was a guy who drove around Trenton, New Jersey, in a truck outfitted with an amplified sound system expressing his views on a labor issue of the day. He was convicted of violating an ordinance against “loud and raucous noises” and thought his free-speech rights were being violated. When the case got to the Supreme Court in 1949, Kovacs lost—with Justice Stanley Forman Reed explaining in the majority opinion that Kovacs had no right to bother “unwilling” listeners in a city of 125,000 people.

But here’s the interesting part of the opinion. Justice Reed went on to say that Kovacs did have a right to access willing listeners. Therefore . . .

“Hecklers may be expelled from assemblies, and religious worship may not be disturbed by those anxious to preach a doctrine of atheism. The right to speak one’s mind would often be an empty privilege in a place and at a time beyond the protecting hand of the guardians of public order. . . . The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners, and to do so, there must be opportunity to win their attention.” (I added the emphasis.)

Many judges since then have used the idea of “willing listeners” to rule against hecklers and against politicians who serve the purposes of hecklers. The bottom line is: The police can’t just stand there and allow speakers to be drowned out by a mob—which is what occurs at almost every one of these gatherings. (The sole exception may be the gathering last April in Pikeville, Kentucky, of three Alt-right groups—the National Socialist Movement, the Traditionalist Workers Party, and the National Front. Since there were 125 protesters and 150 counter-protesters—the closest to parity any of these events have achieved—the police were able to establish a reasonable degree of order.)

In all the other examples I could cite—Berkeley, Portland—city officials let a rally begin, make sure the opposing sides are separated, cut it off for public safety reasons, then congratulate themselves.

This is not what the case law requires.

Let me suggest a system that would work.

Assume that the Alt-right people do not want to get beat up, and listen to what they say about security.

For example, cops could take a cue from Amanda Barker, leader of the Ku Klux Klan chapter based in Pelham, North Carolina. Barker organized a Charlottesville rally one month before the tragic one in August, and to make sure everyone remained safe, she worked closely with the Charlottesville Police Department, giving them the benefit of her experience at dozens of prior events, suggesting changes in their operations plan that would make it difficult for the anti-Klan element to come into contact with her members. Unfortunately, they didn’t listen well.

For example, she suggested that the rally not be announced to the public until the last minute—this request was ignored, resulting in 40 counter-protesters for every Klan member that showed up. These were not “willing listeners,” these were active disrupters.

Worried about their safety, the KKK assembled 30 miles away in Waynesboro, consolidated into 18 cars, called the cops when they were 15 minutes out, and were escorted by two police vehicles to a secure parking garage. Barker had requested buses—past experience indicated that the safest option was to use buses from a secret staging area so that no one has to walk through a hostile crowd—but the city refused that request. A second mistake.

The KKK members then marched in double file to the park, staged their event, and marched double file back to the garage, all the while protected by lines of police on each side of the double file. Even with this level of organization, the counter-protesters locked arms on High Street to prevent the Klan from entering the park, causing multiple arrests which fired up the crowd. And people on both sides of the police line threw punches, launched bottles and fruit, shouted ugly chants, and in some cases jumped over the officers to get at the KKK members. Throughout the 35-minute program, there were projectiles thrown—apples, tomatoes, oranges, water bottles—and the loud shouting of the counter-protesters drowned out the speakers.

The wisdom of using buses was revealed at the conclusion of the event when hundreds of people blocked the doors of the parking garage so the KKK couldn’t drive back to the interstate and get out of town. The police managed to push enough people away from the entrance to get the cars out—even though the cars were hit with sticks and bats as they emerged—and, with no enemy left to focus on, the crowd turned on the police, chanting “Cops and Klan go hand in hand!” It took tear gas, a declaration of unlawful assembly, 22 arrests, and 35 injuries requiring hospital treatment to bring the crowd under control. All that happened after the Klan was gone.

Moral: Police intelligence units can learn things from the Alt-right.

Anyone who blocks a march, blocks entry to a park, or repeatedly drowns out what a speaker is saying has to be arrested immediately.

Yes, this is messy. It requires wading into the crowd and handcuffing people and taking them to a processing area. It slows everything down. It’s likely to cause sympathy for the arrestee, which means other people in the audience will start doing the same thing. They, too, must be arrested.

Because it’s time-consuming to make multiple arrests during a speech, the speaker must be given additional time.

One way authorities shut down Alt-right events is by telling them “you have 30 minutes” and then—after the first 25 minutes are spent on crowd control—telling them they have to leave. This is just another way to endorse the heckler’s veto. The crowd should be made aware that, every time an arrest is made, the organization gets an additional two minutes, even if it means the event goes on for hours.

This won’t stop until there are consequences for punishing the “willing listener.” This won’t stop until taking away a man’s right to speak becomes a crime.

I think these three changes—make the hated organization feel safe, make immediate arrests of people trying to stop speech, award more time to people being shouted down—would go most of the way toward restoring order to a public place where unpopular speakers are gathered.

Or we could do what we did in Little Rock, Arkansas, in the late sixties and early seventies. As a 13-year-old apprentice copy boy, at a time when most newspaper articles were unsigned, I was able to volunteer for events no one else wanted to cover. That meant I got to write about a) hippies, and b) Klan members. A couple of times a year, ten or fifteen Klansmen would drive in from their headquarters in the little Mississippi Delta town of Clarendon and gather at the grave of David O. Dodd. David O. Dodd was the child martyr of the Civil War, a teenage boy who had been executed for spying by the Union general occupying Little Rock. (The facts of the case are hazy. He probably did carry some letters intended for his uncle that showed Union troop positions.) The Klansmen would go through some silly rituals and then read from a book written in stilted Victorian English. Since most of them were only marginally literate, this usually created somewhat hilarious effects. Nobody ever came to these events except the media. I would duly write up the proceedings, turn in the article to the managing editor, and he would say, “Did anything happen?” And I would say, “Just what’s in the article.”

And he would spike it.

“Spike it” had a literal meaning in these prehistoric days of journalism, because he had a long sharp metal spike on his desk and he would slam your article down on it until there were 40 or so spiked pieces that piled up and eventually had to be cleared out so he could start spiking more.

In other words, the Klan was considered eccentric and irrelevant. Nobody cared enough to beat them up.

By contrast, I thought the most telling anecdote in the minute-by-minute account of the sad events in Charlottesville was almost a throwaway.

“At 10:45 a.m., a man with an American flag approached officers in Zone 1 and asked, ‘What’s a good way to get into the park?’ An officer responded, ‘Right now, there is no good way.’ Another officer suggested that ‘up the front’ would be easiest. The man pointed at the clergy blocking the southeast staircase and asked, ‘Through that?’ The officer responded, ‘That’s the only way.’ The man walked away. One officer turned to his colleague and said, ‘Welcome to Charlottesville.’”

One less willing listener for anyone to worry about.

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