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Factbox: When can free speech be restricted in the United States?
August 14, 2017 / 9:29 PM / a month ago

Factbox: When can free speech be restricted in the United States?

A man hits the pavement during a clash between members of white nationalist protesters against a group of counter-protesters in Charlottesville, Virginia, U.S., August 12, 2017. REUTERS/Joshua Roberts

(Reuters) - The white-nationalist rally in Charlottesville, Virginia that turned violent on Saturday, leaving one counter-protester dead and dozens injured, has raised questions about how authorities should balance the right to free speech and public safety.

The U.S. Constitution’s First Amendment protects free speech very broadly and it has historically set a high bar for courts weighing restrictions on what people can say, and where.

The following explains the U.S. approach to regulating speech and the options available to authorities looking to avoid a repeat of the bloodshed in Charlottesville.

Does the First Amendment protect hate speech?

Yes. A bedrock principle of U.S. jurisprudence is that the First Amendment allows for hate speech, including that which denigrates people on the basis of their race, gender or sexual orientation.

The U.S. Supreme Court ruled in 2011 that the Westboro Baptist Church, known for its vitriolic “God Hates Fags” anti-gay campaign, could not be prevented from picketing at military funerals. In the landmark 1969 case Brandenburg v. Ohio, the high court upheld the free speech rights of a Ku Klux Klan member.

“The vast majority of speech that could be deemed hateful is protected by the First Amendment,” said Will Creeley, a lawyer with the Foundation for Individual Rights in Education, a free-speech watchdog group.

The First Amendment only applies to government actors, however. Corporations and private citizens are free to censor speech taking place on their property.

Other countries take a less absolute position on free speech. Britain and Germany are among nations that have criminalized hate speech in various forms.

Can speech be regulated if it encourages violence?

In the Brandenburg case, the Supreme Court said speech loses First Amendment protection if it calls for and is likely to lead to “imminent lawless action.”

The operative word is “imminent.” Following Brandenburg, the high court clarified that vague threats of violence were protected by the First Amendment.

In 1982 the court said civil rights activist Charles Evers did not incite violence when he said blacks who did not participate in a boycott of white-owned businesses would “have their necks broken” by their own people. The statement was not specific enough to incite violence, the court said.

A white supremacist grabs a counter protesters' sign during a rally in Charlottesville, Virginia, U.S., August 12, 2017. REUTERS/Joshua Roberts

Creeley said that typical speech at white supremacist rallies falls far short of incitement to violence. He also said carrying firearms or other weapons would not be considered incitements to violence.

Geoffrey Stone, a professor of constitutional law at the University of Chicago Law School, said cities will face uphill battles if they try to prohibit rallies on the grounds that they incite violence.

“What Brandenburg is about is literal incitement - ‘I’m encouraging you to kill somebody,’ not just saying something that angers someone. That’s different,” he said.

Can U.S. authorities regulate when and how speech takes place?

Yes. The government can place restrictions on the time, place and manner of a protest or rally. But such restrictions must be content-neutral and narrowly tailored.

Flowers lie at a makeshift memorial a day after a car hit counter-protesters in Charlottesville, Virginia, August 13, 2017. REUTERS/Justin Ide

“Government has to do everything possible to respect the right to free speech in public places,” said John Jeffries, a professor at the University of Virginia School of Law. “When you think public protest might lead to violence the legal answer is not to say ‘No.’ The right answer is ‘Yes, but...'”

Charlottesville’s city government granted the organizers of Saturday’s “Unite the Right” rally a permit to hold a demonstration in a one-acre park in the city’s downtown. Citing concerns over safety and crowd size, the city later sought to move the demonstration to a larger park further from downtown.

A federal judge said on Friday the city could not move the protest, saying the rally’s organizer presented evidence that the city’s decision was “based on the content of his speech” rather than public safety considerations.

Could things change in the aftermath of the Charlottesville rally?

Because of what happened in Charlottesville, municipal governments and courts will likely weigh public safety concerns more heavily when considering issuing permits to white-nationalist groups, Jeffries said, which could lead to more time, place and manner restrictions on those groups’ rallies.

“Anytime something like this happens, it affects how people view situations like this going forward,” he said.

Boston Mayor Marty Walsh on Monday suggested his office may place restrictions on a planned Aug. 19 rally which was initially scheduled to bring to the city some of the same far-right figures who spoke at Charlottesville.

Boston Police Commissioner William Evans said at a news conference that the city will take steps to ensure safety, such as keeping opposing protesters separated.

“It is such a shame that we have to be wasting resources on such a group,” he said.

Reporting by Jan Wolfe; editing by Anthony Lin and Bill Rigby

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