By Alix Bruce
In the wake of the slaying of Heather Heyer at a counter-protest to a neo-Nazi protest in Charlottesville, Virginia, a national dialogue on the definition of free speech and the application of the First Amendment has reopened. On both the internet and in the debate, the rights of not only Black Lives Matter advocates and Planned Parenthood recruiters but neo-Nazi marchers and hate-mongering racists have been the subject of intense focus and analysis. While the re-examination of the definition of the First Amendment and all its clauses is a valid and necessary action to take, it begs the question: what does it mean to redefine the right to free speech and to peacefully assemble while the nation is simultaneously confronted with an ever-rising tide of acts of domestic terrorism?
The First Amendment has historically protected the rights of all protesters, allowing for the peaceful airing of grievances; it matters not whether those protestors are from the Black Lives Matter movement or neo-Nazis carrying tiki torches from Walmart. As of August of this year, however, things may be shifting regarding this interpretation. The statement issued by the American Civil Liberties Union of Northern California draws a sharp line in the sand and one that many would prefer to see retracted. By defining the First Amendment by its clause “to peacefully assemble,” the ACLUNC—and, later on, the ACLU national office—has settled itself on one side of a debate that is burgeoning in the wake of a ferocious upswing of incidents of hate speech and bigotry since the election last November. According to the ACLU, the First Amendment does not, should not, and will not protect those who engage in or incite violence, up to and including the neo-Nazis that marched in Charlottesville while carrying assault weapons. However, the Supreme Court has unanimously reaffirmed that there is “no hate speech exception” to the First Amendment. What may be hate speech to one group is little more than slang to others, and passing laws to restrict or prevent certain forms of speech would be a violation of the tenets of the First Amendment itself.
In the wake of this Supreme Court decision, the line between hate crimes and domestic terrorism appears to be growing thin. As that line narrows, the implications of prior hate speech must be considered, especially regarding lone wolf killers. Omar Mateen declared his intent to kill long before he walked into the Pulse nightclub with a gun and opened fire. Dylann Roof wrote a racist, anti-Semitic manifesto before he ever walked into Emanuel African Methodist Episcopal Church. As of September 27, 2017, the FBI has over a thousand open investigations into potential domestic terrorists, including those linked to extremist white supremacist movements or organizations. No American can be prosecuted simply for thinking or saying something bigoted, but with the toxic combination of political radicalization and personal vendettas empowering lone wolf killers to engage in murderous sprees, the transforming role of the First Amendment could affect how, when, and why investigations into domestic terrorism would take place.
While it is true that lone wolf killers are just as motivated by personal issues as they are by political violence, and are rarely attached to any one organization, the tenets of white supremacy are still the chief reason cited for lone wolf attacks. Also true is that while the number of white supremacists in the United States has not notably grown since 2009, they are “by far the most violent” of hate groups; roughly 83% of extremist-related murders in the U.S. in the past ten years or so have been connected to white supremacists. With the definition of the First Amendment’s right to free speech still hotly debated, it is possible that the U.S. could face a national crisis to public safety, especially with incidents of white supremacist and neo-Nazi rallies already on the rise. House Democrats are urging Congress to provide bipartisan solutions to the growing issue of white supremacist movements in the United States, despite the Trump administration ending grants for groups combating white supremacists to favor those investigating Islamic terrorist organizations. Title 18 of the U.S.C. specifically defines domestic terrorism as violence directed at persons or groups in an attempt to intimidate civilians or influence government policy—which could just as easily be applied to the Ku Klux Klan as it could be to Americans radicalized by al-Qaeda. This new definition of the right to peaceful assembly as put forward by the ACLU could provide a temporary stopgap, at least in part, to atrocities like the one that stole the life of Heather Heyer.
The First Amendment is a right and a privilege. In its long history, it has been employed both in defense of and protection from hate speech; the right to air grievances, to peacefully assemble, to speak without fear of governmental reprise is a tenet of American society and has been since the inception of the United States. Without it, the personal security of every resident of the United States could be at risk. What must be clarified, in the wake of what has occurred, and in the specter of things yet to come, is not whether hate speech should be criminalized, but domestic terrorism—so intimately linked to white supremacy and the hate speech it encompasses—will continue to be sidelined beneath the more popular debate about the First Amendment itself.