Brandenburg Doctrine

William Roper: So, now you give the Devil the benefit of the law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast. Man's laws, not God's. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil the benefit of the law, for my own sake.
--A Man for All Seasons

Judge Nap adds legal perspective to our discussion (here, here) about the Charlottesville riots and the First Amendment. The First Amendment protects speech from government infringement. Government does not grant free speech. Free speech is a natural right derived from our humanity. Rather, the proper role of government is to protect speech from invasion by others.

The ink was barely dry on the Bill of Rights before the federal government moved to abridge freedom of speech--particularly speech perceived as threatening to government itself. Alien and Sedition Acts. Lincoln's War. Wilson and FDR during the World Wars. When those infringements were brought before the Supreme Court, sometimes they were rejected and sometimes they were upheld.

At a Ohio rally in the 1960s, a KKK leader named Clarence Brandenburg verbally attacked Jews and Blacks in the federal government and urged followers to travel to Washington and produce violence against them. Brandenburg was subsequently arrested and convicted under Ohio law that prohibited public expression of hatred as a means to overthrow the government.

Brandenburg's conviction was subsequently overturned in a unanimous decision by the Supreme Court in 1969. The court ruled that the entire purpose of the First Amendment is to protect speech that we hate and fear--lest, of course, it would not require protection. The right to decide what speech to consume is left to each individual--not to a group or the government. The court ruled that all innocuous speech is protected absolutely. Speech is considered innocuous when there is time for more speech to challenge it. Brandenburg's speech was innocuous because, while he suggested violence against government officials in Washington, there was reasonable time for speech to suggest otherwise.

The Court's 1969 ruling became known as the Brandenburg doctrine and has been consistently upheld since then.

Applied to the Charlottesville case, the Brandenburg doctrine says that the government cannot take sides in a public dispute. If it does so, then the government becomes a censor, thus infringing upon the free speech rights of those against whom it has taken a position. On the contrary, as noted in a previous post, government is obligated to protect the speaker's right to speak and the audience's right to hear and respond to the speaker.

When the police declined to maintain order in Charlottesville, government abdicated its responsibility to protect the right to free speech. They permitted the 'heckler's veto' where the audience silences speech that it dislikes. When the heckler's veto comes about as a result of government failure to protect the right to speak, then it is unconstitutional. It is equivalent to the government taking sides and censoring speech it hates or fears a la the early Alien and Sedition Acts.

Yet, I am aware of few mainstream media outlets headlining, or even investigating, this story: Government fails to uphold the First Amendment in Charlottesville.