Where Is The Line Between Free Speech And Crime?

Protests in Charlottesville have held recent headlines, particularly when fatalities resulted from the violence. While American citizens enjoy the right to free speech as well as the right to freedom of association, this rally quickly exploded into taunting, shoving, and brawling, prompting the governor to declare a state of emergency and call in the National Guard. A car also plowed into the crowd at one point, killing a woman and injuring some 20 others.

When does a demonstration turn into a crime (most frequently, assault & battery, or sometimes even homicide)? The Department of Justice announced that it will be opening a civil rights investigation into the circumstances of the vehicular incident, which will be conducted by the department’s Civil Rights Division, the F.B.I., and the Western District of Virginia.

When Protesting Turns into Crime

Police often do make arrests for unlawful assembly, disorderly conduct, misdemeanor assault and battery, and/or carrying concealed handguns at protests. Once an area is declared an unlawful assembly, police can clear it and bring in the National Guard to arrest anyone who remains. Cities can declare a state of emergency during a protest if there is imminent threat of civil disturbance, unrest, potential injury to persons, and/or destruction of public and personal property.

What about the First Amendment and Hate Crimes?

Drawing the line between what is hateful expression, illegal acts, vague threats, and free speech protected by the First Amendment can be difficult. It’s not only difficult for everyday people to distinguish, but it can be challenging for the courts and prosecutors as well.

The Hate Crimes Prevention Act makes it illegal to physically harm someone based upon their religion, national origin, race, gender, sexual orientation, or similar characteristics. While the First Amendment permits broad free speech protection and permits membership in what many consider to be controversial organizations—some of which espouse hateful ideologies—the courts have carved out some notable exceptions to protected free speech, such as comments intended as specific and immediate threats and personal, face-to-face comments intended to incite imminent lawlessness.

Specifically, one Supreme Court case articulated what’s known as the “fighting words doctrine,” restricting protection of insults if they are intended to provoke an immediate breach of the peace. In another Supreme Court decision, Justice Sandra Day O’Connor described “true threats” as statements in which the speaker communicates a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. 

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Resources:

nytimes.com/2017/08/12/us/charlottesville-protest-white-nationalist.html

pbs.org/newshour/rundown/how-federal-law-draws-a-line-between-free-speech-and-hate-crimes/