Obviously I’m bringing this up because of Charlottesville, but it doesn’t have to be specifically about that.
If a group has a history of lying about their intentions under cover of nonviolent free speech, but routinely and/or predictably escalate to violence, how does the law address that?
“We’re going to gather with our guns, instill fear, and be very, very peaceful. Wink wink. Totally peaceful.” Oh ok, no problem, have a good march!
And then people die. If this keeps on happening – probably intentionally, where a group purposely finds incendiary locations to invite and incite violence – while using words designed just to barely skirt what is permissible under the letter of the law but not the spirit of it… what happens?
At some point, does the predictability of violence change the freeness of that speech? “You KNEW that if you went there and said those things, violence would undoubtedly ensue. It happened the last four times you tried it.”
I believe the word you’re looking for is “inciting.” The law tends to take a fairly dim view of it, particularly if people are generous enough to document ahead of time that they’re going to do it. Do you have any examples where people have done this?
What the law does is punish the escalation to violence and not peaceable assembly or speech. Prior restraint is illegal. If it was not, then a group could attack people going to a Bernie Sanders speeches and if they do it enough times have the government declare that Bernie Sanders can no longer speak in public.
This is the Nazis and the Ku Klux Klan. They have an established history. And that history is they do not need any opposition to descend into violence. They are prone to initiate violence even when they are unopposed.
In Brandenburg v. Ohio (1969), a Ku Klux Klan leader was convicted under the Ohio Criminal Syndicalism law which targeted groups/individuals promoting
*"the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform
voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."*
The Supreme Court reversed the conviction, but left open the possibility of prosecution where “imminent” incitements to violence were involved.
Note that similar laws were enacted by numerous states roughly during the period of 1917-1920, during the Red Scare (and by the language of the Ohio law, evidently to intimidate labor activists as well).
One could argue that some groups’ message and goals are so repugnant that they demand armed counter-protestors show up to confront them, and thus there is imminent danger of violence every time such groups appear in public. I suspect that argument would be on shaky legal ground.
According to a participant on Chris Matthews show yesterday, a pastor of some sort who, along with several other ministers and rabbis and other religious leaders, linked arms silently in front of the nazi and white supremacist marchers, when they were attacked by the nazis and white supremacists, only the antifa counter protesters protected them. She credited them for possibly saving her and the other religious leaders from serious injury or death.
I’m sure some antifa folks are assholes, but protecting peaceful religious leaders from violent nazis and white supremacists sounds like a very positive thing to me (assuming her account is accurate).
"For half an hour, three men dressed in fatigues and armed with semi-automatic rifles stood across the street from the temple. Had they tried to enter, I don’t know what I could have done to stop them, but I couldn’t take my eyes off them, either. Perhaps the presence of our armed guard deterred them. Perhaps their presence was just a coincidence, and I’m paranoid. I don’t know.
Several times, parades of Nazis passed our building, shouting, “There’s the synagogue!” followed by chants of “Seig Heil” and other anti-Semitic language. Some carried flags with swastikas and other Nazi symbols."
I’m sure you see this as First Amendment protected speech.
“Soon, we learned that Nazi websites had posted a call to burn our synagogue.”
This however, is NOT. In combination with the above, this lays bare the threat.