KKK members travel to Virginia to put First Amendment to the test

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A public Ku Klux Klan (KKK) meeting was held on July 8 in protest of a decision by Charlottesville, Virginia to remove a Confederate monument; however, the meeting was met with strong opposition by nearly 1,000 counter-protesters who were present and trying to drown out the KKK’s message. About 50 members of North Carolina’s Loyal White Knights of the Klan traveled to a park in Charlottesville to stand in opposition of the city’s removal of a statue of Confederate General Robert E. Lee from a local park.  This was not intended to be an isolated event on behalf of the city, but rather one of several steps in the city’s plan to reduce the number of Confederate monuments in Charlottesville.  The park itself, Justice Park, had until recently been named after notable Confederate military leader, General Stonewall Jackson.

The Klansmen came prepared for potential conflict with people who disagree with their message. Some members had previously announced they would even come with loaded firearms, which is permissible under Virginia’s open-carry law.  When the Klansmen arrived at Justice Park, however, they were forced to rely on a police escort into the park to their designated protest area because there were nearly 1,000 counter-protesters crowded around and surrounding the area, trying to keep the Klansmen from entering and leaving the park.

Despite the police presence, a few scuffles did break out after some counter-protesters tried to block the Klansmen’s vehicles, and the gathering was declared an unlawful assembly just over half an hour after the Klansmen arrived.  The police reported to have used pepper spray and ordered the crowd to disperse. When the unruly crowd disobeyed, state police released a couple canisters of tear gas into the crowd and most people left, except 22 who were arrested.

Many believe the rowdiness of the protestors and counter-protesters crossed the line.  What is unclear, is who, if anyone, was in the wrong?  As Klansman Douglas Barker said, “They’re trying to erase our history, and it’s not right what they’re doing,” which was enough reason for Barker to speak out publicly against the statue’s removal.  On the same note, the counter-protesters’ rights to combat the Klan’s chants for “white power” with their own shouts against racism falls within the same constitutional protections of the First Amendment.  This quandary then begs the question: who is entitled to “freer” speech?  At the end of the day, both groups were silenced by the state. So who really wins?

Prior to the event and its unfortunate ending by tear gas, Charlottesville Mayor, Mike Signer, had urged the city’s residents not to “take the bait” and to “deny the KKK the confrontation and celebrity they desire,” while encouraging city residents to pursue alternative events like a concurrent unity rally.  Clearly, the suggestion did not deter the Klan’s opposition.

In the past, the Klan’s speech has been granted protection under the First Amendment, but the group has also been in violation of it.  

This is not the first time the KKK has run into problems with other citizens because of the message they were conveying.  In the past, the Klan’s speech has been granted protection under the First Amendment, but the group has also been in violation of it.  As a general rule, the right to free speech allows an individual to speak or express themselves, even when others may find it bigoted or offensive.

According to Eugene Volokh, a law professor and first amendment scholar, certain forms of speech are not tolerated under the law, but hate speech is not one of those prohibitions.  Essentially, for speech to be unconstitutional, it must rise to the level of a substantive threat or harassment. “Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas,” Volokh said. “One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans.”

The ACLU agrees.  The ACLU of Oregon recently posted on Facebook, “It may be tempting to shut down free speech we disagree with, but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.”

[S]peech that is aimed at inciting violence and is likely to accomplish that goal is what can be properly barred.  

As a result of First Amendment advocacy, the KKK has been more protected than some people believe they should be.  It should be noted that protecting hate speech by the KKK is not a new idea; Supreme Court precedent clearly provides an example.  In Brandenburg v. Ohio, a 1969 case heard in the Supreme Court, a Klan leader made a speech at a rally and was later convicted under state syndicalism law.  In short, the Court held that advocacy alone, even for ideas that many would find unpleasant, is not illegal.  Rather, speech that is aimed at inciting violence and is likely to accomplish that goal is what can be properly barred.  Therefore, the Klan leader was free to continue speaking on the Klan’s doctrines and stances.

On the other hand, courts have also held that the Klan has gone too far before.  In 1999, New York City’s decision to forbid masked KKK members to hold a rally in Manhattan sparked outrage on both sides of the First Amendment debate. Then-New York City Mayor Rudolph Giuliani’s depiction the KKK as a ”disgusting, horrible organization that represents the very worst of American history,” was not a description many found worth contesting.  When the issue of the banned rally was taken to court, a three-judge appeals panel insisted on the enforcement of a state law that made it illegal to be masked in public without the permission of city officials.

The city refused the Klan, insisting that in the event of violence, it would be too difficult to make legitimate identifications.  Without testimony to support this suspicion of violence, the trial court had ruled the masks were protected, even though they were also a form of symbolic hate speech in themselves.  The appeals panel was only able to silence the Klan using the state’s “no masks” law, which many found to be a proxy clearly targeting the controversial KKK at the time.

The question becomes whether there is power in silencing the Klan when that silence erodes the First Amendment for all Americans.  The incident in Charlottesville is perhaps the most recent call for concern regarding the First Amendment’s protections. Unlike Brandenburg, there was an incitement to violence, even if it was reactionary.  The scuffle between the protesters and counter-protesters arose in the midst of an American era facing extreme political tension and a new age of civil rights battles.  A group that was deemed “offensive” in 1969 is likely to face a more heated resistance today simply because there is a louder voice rising from those suffering from racism, sexism and other forms of oppression.  The KKK was not the first, nor will it be the last, group to test the boundaries of free speech.  Soon enough, the Supreme Court will need to address how to protect the rights of citizens in light of a social revolution.  Will hate speech continue to skate under the protections of the law, or will it join the kind of words and expressions that simply go too far?