President Tiny Hands LIED about counterprotesters not having permit

[OldLady]

I gotta go, Ice. I'm not ignoring you or giving up. 'Til next time.

 

[usmbguest5318]

Perhaps CNN is citing the Southern Poverty Law Center for who is labeled a hate group. It's what SPLC does. Check it out.

I believe the Anti-Defamation League also makes such pronouncements. (?)

Iceberg is probably right that people are using the "hater" label rather freely in some places, especially this week. He is not right, though, that hate speech can not be defined. Out of that great long post you gave us, I did not see any concrete examples of what the Court considered to be unacceptable hate speech, though. I believe I did see a definition of sorts, but it was kinda hazy. You know me, Xelor, I need some clear examples in order to grasp a thing.
Iceberg won't give me examples either.
How about some help?
Why is it so hard for Iceberg to define hate speech? Why is all that you wrote about the court not including any? It is secret?

Why is it so hard for Iceberg to define hate speech?

Well, I can't say what goes through that guy's mind; I think too much of what he's said to me is obtuse, trite and insipid, so I stopped paying him any mind. Were his remark made by some of the individuals I know well enough to know they're merely ill/under informed, but not obtuse, insipid or trite, I'd posit that they cannot define hate speech because they construe it in the same way Potter Stewart construed pornography. Examples of such individuals include my kids prior to their having studied the 1st Amendment.

The thing is that "hate speech" is defined, though there are broader and narrower definitions of it. The dilemma is that although the term is defined, there are multiple accepted definitions of it. Most commonly, however, "hate speech" is understood/defined as:

...communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation. Hate speech takes many forms. Examples include Ku Klux Klan cross-burnings directed at racial or religious minorities; obscene phone calls threatening violence against women; epithets shouted at gay marchers; published diatribes against marginalized racial or immigrant groups; defacement of places of worship; and harassment of an interracial couple because of race.
​

Another writer offers this:

Hate speech has been defined in many ways. Perhaps the most useful definition characterizes as hate speech any persecutorial, hateful, and degrading expression that conveys a message of group inferiority about a historically oppressed group​

What is accurate to say, as one can see from the above, is not that hate speech is undefined, but rather that it's multiply defined. Even while there is no singly universal definition, the several definitions of "hate speech" are close enough for most applications of lay discourse. Of course, one might also simply peruse several of the acceptable ones and specify one of them as the definition applicable to one's own remarks. That way, if other parties to the discussion are okay with one's selected definition, they'll just go with it, or not okay with it, they'll air their objections.

(Obviously, if one is a recognized authority on 1st Amendment theory and practice, one can coin one's own definition. Any individual who's here going to do that will have already published that definition elsewhere and thus will reference it. Thus, in this context, an original definition is not really a valid option.)

Why is all that you wrote about the court not including any? It is secret?

The document I referenced provides a definition of "hate speech" and it provides a host of references (in footnote #2) that discuss the definitional challenges associated the term "hate speech."

 

[usmbguest5318]

No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.

I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.


Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)

There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:

To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.

Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]

As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'

Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."

The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.

How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
​

The predominance of the affirmative model over the negative has not, however been absolute. The area of hate speech is one dimension whereby the Court has seen fit, to grant way to some applications of the negative model. The SCOTUS evaluates matters of proscribing expression using several doctrines, some of which, drawn from the affirmative model, protect aspects and forms hate speech and others drawn from the negative model and that the Court accepts as legitimate grounds for proscribing and/or punishing hate speech. My attestation that I'd have denied the permits, obviously, derives from the Court's recognized negative principles. What are the various principles? (Read Smolla's paper for detailed discussion of what they entail and, with regard to the affirmative principles, bars one must meet overcome their forbearance of hate speech.)

Affirmative principles that protect certain hate speech:

• Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
• Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
• Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
• Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
• Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
• Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
  • Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
  • Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]

Negative principles that allow hate speech to be restricted:
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:

• The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
  
• The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
  
• Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
  
• Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
• The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
  
• The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]

By this point, one should have read the framework and my notes explaining how I've applied them. If one has done so, one will observe that in choosing to deny permits to the white supremacists/nationalist and their Antifa opponents, I've applied the requisite and situationally applicable "affirmative" and "negative" free speech doctrines and tests and that I've closely adhered to SCOTUS guidance in doing so. Accordingly, I ma confident my "hypothetical" decision to withhold permits would likely stand.

​

Notes:

1. See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
   
   "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
   
2. Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
   
   Obviously, the category of harm I'd aim to prevent is Category I.
   
   (For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)
   • Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
     • Category I -- Physical Harms.
       • Injuries to persons -- Examples:
         • Solicitation of murder
         • Incitement to riot on behalf of the speaker's cause
         • Reactive violence against a speaker in response to their message
       • Injuries to property -- Examples:
         • Solicitation of arson
         • Incitement to destroy property
         • Reactive violence against the property of the speaker in response to the message
     • Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
       • Injuries to social relationahips
       • Injuries to transactions or business relationships
       • Injuries to information ownership interests
       • Injuries to interests in confidentiality
     • Category III -- Reactive Harms
       • Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
       • Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
3. Once again, positive and negative liberty rear their heads.
4. One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
5. "Penalise" and "indeterminate" -- Observe that:
   1. The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
   2. The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
      
      That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
6. SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
   
   In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
   
   It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it.
7. Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
8. This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
9. Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.

Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.

I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.

Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.

By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.

Sorry...

fell asleep somewhere around paragraph 10

That is what it is.....You replied with a potential challenge to my earlier conclusion and stated course of action. I provided a comprehensive explanation for my stated course of action.

and if I were in a lecture hall at the local university, I'd have sat quietly and taken notes.

Unfortunately, I'm not, I won't be required to take a test on the subject, at the end of semester..

I asked as simple question, an hour long lecture wasn't necessary.

(unless, of course, you're getting paid by the word)

(PS, I still dont' know if the case has been overturned)

(PS, I still dont' know if the case has been overturned)

Dude, you just saw the length of the post and opted to read none of it, and certainly not the "first ten paragraphs" as you stated, didn't you?

The first word of the post answered your question. (I'm not like many members. I don't dodge fairly posed questions.) I even referenced and applied Brandenburg in my essay.

No;

and that's all that was needed.

Actually, I read about the first 20 paragraphs.

None of which meant a damn to the question.

Did you ever hear of the word KISS in regards to lectures?

Keep It Simple, Stupid

Most here dont' want a lecture, they want an answer.

I read about the first 20 paragraphs....

Why if neither more nor less than what you wanted I'd provided in the very first word of the post?

I read about the first 20 paragraphs.

None of which meant a damn to the question.

It wasn't meant to. The first word of the post is what I wrote to answer the question you asked.

 

[Auld Phart]

Sorry...

fell asleep somewhere around paragraph 10

That is what it is.....You replied with a potential challenge to my earlier conclusion and stated course of action. I provided a comprehensive explanation for my stated course of action.

and if I were in a lecture hall at the local university, I'd have sat quietly and taken notes.

Unfortunately, I'm not, I won't be required to take a test on the subject, at the end of semester..

I asked as simple question, an hour long lecture wasn't necessary.

(unless, of course, you're getting paid by the word)

(PS, I still dont' know if the case has been overturned)

(PS, I still dont' know if the case has been overturned)

Dude, you just saw the length of the post and opted to read none of it, and certainly not the "first ten paragraphs" as you stated, didn't you?

The first word of the post answered your question. (I'm not like many members. I don't dodge fairly posed questions.) I even referenced and applied Brandenburg in my essay.

No;

and that's all that was needed.

Actually, I read about the first 20 paragraphs.

None of which meant a damn to the question.

Did you ever hear of the word KISS in regards to lectures?

Keep It Simple, Stupid

Most here dont' want a lecture, they want an answer.

I read about the first 20 paragraphs....

Why if neither more nor less than what you wanted I'd provided in the very first word of the post?

I read about the first 20 paragraphs.

None of which meant a damn to the question.

It wasn't meant to. The first word of the post is what I wrote to answer the question you asked.

I continued reading to see if there was anything pertinent.

There wasn't.

and then you went on and on, like the befuddled uncle that needs to tell you all about his vacation to the Far East...

50 years ago.

 

[usmbguest5318]

That is what it is.....You replied with a potential challenge to my earlier conclusion and stated course of action. I provided a comprehensive explanation for my stated course of action.

and if I were in a lecture hall at the local university, I'd have sat quietly and taken notes.

Unfortunately, I'm not, I won't be required to take a test on the subject, at the end of semester..

I asked as simple question, an hour long lecture wasn't necessary.

(unless, of course, you're getting paid by the word)

(PS, I still dont' know if the case has been overturned)

(PS, I still dont' know if the case has been overturned)

Dude, you just saw the length of the post and opted to read none of it, and certainly not the "first ten paragraphs" as you stated, didn't you?

The first word of the post answered your question. (I'm not like many members. I don't dodge fairly posed questions.) I even referenced and applied Brandenburg in my essay.

No;

and that's all that was needed.

Actually, I read about the first 20 paragraphs.

None of which meant a damn to the question.

Did you ever hear of the word KISS in regards to lectures?

Keep It Simple, Stupid

Most here dont' want a lecture, they want an answer.

I read about the first 20 paragraphs....

Why if neither more nor less than what you wanted I'd provided in the very first word of the post?

I read about the first 20 paragraphs.

None of which meant a damn to the question.

It wasn't meant to. The first word of the post is what I wrote to answer the question you asked.

I continued reading to see if there was anything pertinent.

There wasn't.

and then you went on and on, like the befuddled uncle that needs to tell you all about his vacation to the Far East...

50 years ago.

OT:
LOL.

The very reason I directly answered your question right at the outset was in courteous recognition that the post was long, and I thought it'd have been rude to force you read/scan through the whole thing just to get the answer to an objectively and binarily answerable clearly asked question about a point of fact.

 

[iceberg]

I believe the Anti-Defamation League also makes such pronouncements. (?)

Iceberg is probably right that people are using the "hater" label rather freely in some places, especially this week. He is not right, though, that hate speech can not be defined. Out of that great long post you gave us, I did not see any concrete examples of what the Court considered to be unacceptable hate speech, though. I believe I did see a definition of sorts, but it was kinda hazy. You know me, Xelor, I need some clear examples in order to grasp a thing.
Iceberg won't give me examples either.
How about some help?
Why is it so hard for Iceberg to define hate speech? Why is all that you wrote about the court not including any? It is secret?

AGAIN

i never said it can't be defined. i AM SAYING AGAIN i may define it one way - you another. my questions are simply how can YOU AND I agree on a baseline so we know what we're talking about.

how do some websites now get tagged HATE SPEECH - what criteria was used there to make it that? how was that defined? yes all broad questions but to answer the NOW Issue - the white supremacists are fucking assholes and i don't blame the reactions they get one damn bit.

i'll leave it there cause any futher explaining or opinions get seriously sidetracked.

So then define it.

you have the obvious supremacists who are there just to hurt people. i agree this is hate speech. censorship and the rest lets shelve for now.

so far so good. i think we can agree here. now *i am stepping back a bit* to see where this is going.

Pacific Justice Institute

these guys are on CNN's hate list which as you said i believe stems from the southern poverty law center. see? we're talking, i'm learning and reading more to understand. but if i go look at that site, i don't see anything remotely similar to the supremacists in talk, actions, or *hate*.

why are they there? i'm not asking you to answer but hopefully ask that question with me. what put them on this site? did they have a hate rally in 2012 and it stuck with them? did they spray paint nazi symbols on a synagogue in 2008? again, i don't know but i do want to know what it was that landed them on this list as a "hate group" because i want to know how *we as a culture* are trying to define this because when you do this invariably you will take it too far. i honestly think that's where we are now - one side pushed the other too far and the other side is now pushing back. for the most part this is the 10% on either side to me, not the 80% of us in the middle.

so that's why i ask you / us to define it cause we have the obvious hate speech then you have a gov agency out there along with facebook, twitter, google and the rest of the tech companies determining on their own "what is hate".

and i do NOT want to see that or it's gonna get a lot worse than what we've got today.

I don't know what you are referring to with "a gov agency ... facebook, twitter, google and the rest of the tech companies determining on their own 'what is hate.' " Facebook, twitter, google and the other tech companies can make whatever rules they like. I suppose the government has been "branding" hate groups a long time, since they keep an eye on them.
I don't want to see stuff like that Stormer wrote about Heyer on USMB or on Google and I'm glad they don't allow it. It doesn't bother me one bit. Why are you so afraid of stopping something so clearly disgusting?

i mean we will soon have hate defined by:

the government
google
facebook
twitter
paypal

and all these places each on their own determining what THEY call hate. more also i'm sure. what basis are they going to use?

i agree we have the obvious. ban it on their own sites - up to them. if it bugs me that much i can move on and find another service.

but when the gov does it, again what is the criteria when it's not so obvious.

again - pacific justice institute - why are *they* on a hate list? i'm just wondering what put them there cause i don't see the HATE all over their website.

i think we can all agree on the extreme when in fact that is hate. i never disagreed there.

my question is the gray area - who's going to determine that? the answer is "the mob" and they're doing it now. i don't like mob mentality and never will cause we get 6 versions of what is hate which is going to lead to pissing contests and lawsuits and more protests because as "people" usually do we go too far to compensate for the real issue at hand.

we need to think about removing civil war statues and where we are as a country.

great. let's talk about it as a group. not let mobs run around defacing and destroying them and doing it in the name of justice and moral superiority. why?

cause that causes the other side to rise up and fight back. if i'm wrong, give me a better explanation of what is going on today.

 

[iceberg]

I wonder if these Trumpies ever saw themselves as having to defend Nazis when they decided to vote for him?

This whole conversation spun way out of control within 24 hours and has gotten into ideology land where people can bitch for months and years and never accomplish a goddamned thing. No one HAS to defend neo-Nazi's. I don't think Trump did. All this crying and whining about being called haters is ridiculous, though.

agreed. i also agree we've spun off but tell me, if we talk about this incident only are we really learning anything if we're not looking at the bigger picture also?

maybe that's why we get frustrated talking to each other is i want to see a bigger picture and establish a baseline for all actions i suppose and you're more into the topic at hand. NOT SAYING EITHER IS BAD!!!! just the different points of view we have and or conversations we like to drift to.

For me, an argument must at some point include the particular. It can extend out to more comprehensive themes, but when you complain about a particular thing, am I wrong to expect a particular justification for it?
I like big pictures a lot. However, sometimes people get so into the big a picture that they can ignore the fundamental issue. The fundamental issue for me is, do these hate groups have a right to stand on their soapbox and say what they do about other groups based solely on their race or their religion? Why do they get to do that in a country that values individual freedom? Doesn't that violate another group's right to live peaceably and equally?

it's a good question people have argued since we've become a country i suppose.

if we have the right for *all people* to speak their mind in a non-violent fashion, to me we either do or we don't.

if we say 1 can't do it, then we've set the standard we can do it again. and again. where do you draw the line at freedom of speech. yes it can hurt at times and i count on people and karma to help take care of the assholes but you can't stop life from simply hurting at times. you can however find better ways to deal with it.

if no one gave a damn about the assholes in the park shouting out that shit and maybe a few stoners get paid to giggle at 'em, what would they do? go away wondering why no one gives a shit about their opinions.

if we send in another group of hate to fight that group of hate - people who are in fact good people are gonna pick a side and do what they feel is the right thing in a time of crisis - of which i do think we're living in. is that gonna help? we can scream how much better we are at the other side, or we can show them.

give me door #2 please.

Let not any one pacify his conscience by the delusion that he can do no harm if he takes no part, and forms no opinion. Bad men need nothing more to compass their ends, than that good men should look on and do nothing.

John Stuart Mill 1867 Address at the University of St. Andrews

I'm glad this came up, in a way. The country needed to think about it. Ignoring/giggling at the neo-Nazi's, KKK and other white nationalist organizations out there is not going to work. They are gaining popularity and that is not a good thing, imo. At least there are a LOT of people on the news and in the streets expressing their dislike of these hate groups. They are called hate groups because they are organized around excluding/hating/disrespecting the rights of other groups. They say hateful things, like the guy in the Stormer who said he was glad Heather Heyer was dead. That's the kind of shit they say and that's why people call them hate groups. Because they are groups that hate people. WHY IS THAT SO HARD FOR YOU TO UNDERSTAND?

Oh, I hear your question--if we take away the neo-Nazi's right to hold a rally and chant blood and soil while carrying torches through the night, threatening Jews, does that mean that next they will take away my right to say Donald Trump is an idiot? Or that conservatives are socially regressive? Can you not see the difference between what they are saying and what a different political viewpoint might be?

what is hard for me to understand is why some hate is ok but the other isn't. hate is hate to me and i don't see you beating it by hating it more.

as for the flip to calling trump an idiot - that's venting. i do it at times also but he still won the vote. he's still the president. if it does turn out the russia crap is all made up - would the left apologize or just say he deserved it?

my bet is #2 but lord that derails this convo doesn't it?

and finally - i never said do nothing. i just said put some thought into what you do and react less.

dunno why that is hard to understand either. >g<

you made some good points, oldlady. and i do appreciate the thought behind your answers. thank you.

 

[C_Clayton_Jones]

President Trump’s false claim that counterprotesters lacked a permit

The Facts


Walt Heinecke, a professor at the University of Virginia, told Moyer that he received a “special events certificate of approval” for events at McGuffey Park and Justice Park — sites blocks from Emancipation Park, where white nationalists had a permit for a Saturday rally. A car allegedly driven by James Alex Fields Jr. rammed into counterprotesters, killing a 32-year-old woman, on Fourth Street, which runs adjacent to Justice Park.

Trump again misleads his sheeple with bad information.

Like most on the right Trump doesn’t care about facts or the truth – they’ll lie regardless of the truth.

Conservative credo: repeat a lie often enough in the hope it’s perceived to be ‘true.’

 

[Tresha91203]

Read your own connection you bloody simpering fool. They had no legal permit for Emancipation Park. They blocked the only two exits for the rally attendees.

Did YOU bother to read the whole link? Counter protesters didn't need a permit to be in the park.

From the link....................

Charlottesville spokeswoman Miriam I. Dickler told Moyer that only one permit was issued for Emancipation Park — the one received by white nationalists staging the “Unite the Right” rally. However, counterprotesters did not need permits to protest that rally, she said.


“Please bear in mind that people do not need a permit to enter a public park, even when another event is scheduled to take place there, nor are they required to have one to be on streets or sidewalks adjacent to or outside the park,” Dickler said in an email.

Per the spokeswoman, people don't need a permit to enter a public park, even when another event is taking place there. And, they don't need one for the streets or sidewalks adjacent either.

Yeah, the white supremacists did get their permit to hold a rally. But, the people who showed up to protest their rally didn't need a permit, because it's a public park.

so they showed up to peacefully protest. right? anything else is not legal.

are we in agreement here?

Both sides had violent components, so that's a wash.

What isn't a wash is the difference between being FOR white supremacy or AGAINST it.

Against WS but for protecting the First Amendment.

 

[Tresha91203]

Maybe because the Nazi's also moved?

The nazis were forced to clear the area by the police. There were funneled to 2 exits, one blocked by Antifa types and one blocked by clergy, 2 and 3 deep. Barring entrances and exits is illegal, but the cops used teargas, although lightly, to force the nazi shitheads into the counterprotesters. The CP's should have been cleared before cattling the WS through the 2 allowed exits ... because EVERYONE knows the clashing of skinheads and Antifa is CERTAINLY going to be violent. Duh!

 

[Tresha91203]

A permit is required for an assembly of protesters. That's why there was a permit at all. People can come and go, but they cannot hold an event (like a protest or counterprotest) without a permit. They are first come first served. For safety reasons, protests and counterprotest are separated.

I understand that psychoboy want to the counterprotest? Can't gain a clear understanding because some sources say the WS were removed (by law enforcement) from their approved location and steered right into the CP's. The alleged murder appears to have been at the entrance/exit of one of the parks assigned to CP's.

For safety reasons, protests and counterprotest are separated.

In whose mind, do you suppose, ~400 feet one one side, and ~1000 feet on the other, "separation" in a town the size of C-ville (the vast majority of which is UVA campus and university-affiliated land), a place where one can holler that far and be heard, between groups numbering in the hundreds constitutes sufficient separation "for safety reasons" between groups like white supremacists and their opponents?

It wasn't sufficient at all! As I've said before, the police messed up! They are supposed to be separated for this very reason. If you were in charge of those permits, would you have put them that close with no barricade or wall of mounted cops? I wouldn't have. It doesn't take a psychic to know someone's going to get hurt or killed.

If you were in charge of those permits, would you have put them that close with no barricade or wall of mounted cops?

Were I in charge of issuing permits in Charlottesville, VA and aware that the permit was being requested for a white supremacist/nationalist gathering, I almost certainly wouldn't have issued white supremacists/nationalists a protesting permit -- on the grounds that hate speech isn't protected by the 1st Amendment and that it's reasonable to expect at least some of their speech would be hateful in nature -- in the town of Charlottesville. I would also have denied the counter-protesters a permit too were it apparent to me that they might attract Antifa and or white supremacist/nationalist contingents. Big cities are welcome, at their discretion, to forebear the sorts of conflagrations that result from clashes of those two groups, C-ville, and its overwhelmingly large student population, just doesn't have the resources to contain that sort of madness.

I'd have told them to submit a petition or send in written letters voicing their objections to removing the statue or reasons why it should be removed.

Did they overrule Brandenburg v. Ohio?

No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.

I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.


Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)

There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:

To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.

Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]

As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'

Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."

The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.

How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
​

The predominance of the affirmative model over the negative has not, however been absolute. The area of hate speech is one dimension whereby the Court has seen fit, to grant way to some applications of the negative model. The SCOTUS evaluates matters of proscribing expression using several doctrines, some of which, drawn from the affirmative model, protect aspects and forms hate speech and others drawn from the negative model and that the Court accepts as legitimate grounds for proscribing and/or punishing hate speech. My attestation that I'd have denied the permits, obviously, derives from the Court's recognized negative principles. What are the various principles? (Read Smolla's paper for detailed discussion of what they entail and, with regard to the affirmative principles, bars one must meet overcome their forbearance of hate speech.)

Affirmative principles that protect certain hate speech:

• Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
• Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
• Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
• Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
• Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
• Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
  • Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
  • Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]

Negative principles that allow hate speech to be restricted:
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:

• The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
  
• The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
  
• Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
  
• Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
• The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
  
• The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]

By this point, one should have read the framework and my notes explaining how I've applied them. If one has done so, one will observe that in choosing to deny permits to the white supremacists/nationalist and their Antifa opponents, I've applied the requisite and situationally applicable "affirmative" and "negative" free speech doctrines and tests and that I've closely adhered to SCOTUS guidance in doing so. Accordingly, I ma confident my "hypothetical" decision to withhold permits would likely stand.

​

Notes:

1. See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
   
   "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
   
2. Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
   
   Obviously, the category of harm I'd aim to prevent is Category I.
   
   (For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)
   • Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
     • Category I -- Physical Harms.
       • Injuries to persons -- Examples:
         • Solicitation of murder
         • Incitement to riot on behalf of the speaker's cause
         • Reactive violence against a speaker in response to their message
       • Injuries to property -- Examples:
         • Solicitation of arson
         • Incitement to destroy property
         • Reactive violence against the property of the speaker in response to the message
     • Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
       • Injuries to social relationahips
       • Injuries to transactions or business relationships
       • Injuries to information ownership interests
       • Injuries to interests in confidentiality
     • Category III -- Reactive Harms
       • Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
       • Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
3. Once again, positive and negative liberty rear their heads.
4. One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
5. "Penalise" and "indeterminate" -- Observe that:
   1. The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
   2. The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
      
      That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
6. SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
   
   In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
   
   It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it.
7. Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
8. This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
9. Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.

Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.

I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.

Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.

By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so. The permit is to give LE a heads up so they can protect the people there. The permit is NOT for permission to exercise your constitutional rights. The permits are also required to be issued in a timely manner as well, so no dragging it out and hoping they get tired of waiting and give up. The ACLU even backed giving permits to the skinheads/nazis/kkk. I'm pretty sure it was the ACLU that filed suit when C'ville tried to revoke the permit.

 

[usmbguest5318]

In whose mind, do you suppose, ~400 feet one one side, and ~1000 feet on the other, "separation" in a town the size of C-ville (the vast majority of which is UVA campus and university-affiliated land), a place where one can holler that far and be heard, between groups numbering in the hundreds constitutes sufficient separation "for safety reasons" between groups like white supremacists and their opponents?

It wasn't sufficient at all! As I've said before, the police messed up! They are supposed to be separated for this very reason. If you were in charge of those permits, would you have put them that close with no barricade or wall of mounted cops? I wouldn't have. It doesn't take a psychic to know someone's going to get hurt or killed.

If you were in charge of those permits, would you have put them that close with no barricade or wall of mounted cops?

Were I in charge of issuing permits in Charlottesville, VA and aware that the permit was being requested for a white supremacist/nationalist gathering, I almost certainly wouldn't have issued white supremacists/nationalists a protesting permit -- on the grounds that hate speech isn't protected by the 1st Amendment and that it's reasonable to expect at least some of their speech would be hateful in nature -- in the town of Charlottesville. I would also have denied the counter-protesters a permit too were it apparent to me that they might attract Antifa and or white supremacist/nationalist contingents. Big cities are welcome, at their discretion, to forebear the sorts of conflagrations that result from clashes of those two groups, C-ville, and its overwhelmingly large student population, just doesn't have the resources to contain that sort of madness.

I'd have told them to submit a petition or send in written letters voicing their objections to removing the statue or reasons why it should be removed.

Did they overrule Brandenburg v. Ohio?

No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.

I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.


Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)

There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:

To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.

Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]

As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'

Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."

The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.

How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
​

The predominance of the affirmative model over the negative has not, however been absolute. The area of hate speech is one dimension whereby the Court has seen fit, to grant way to some applications of the negative model. The SCOTUS evaluates matters of proscribing expression using several doctrines, some of which, drawn from the affirmative model, protect aspects and forms hate speech and others drawn from the negative model and that the Court accepts as legitimate grounds for proscribing and/or punishing hate speech. My attestation that I'd have denied the permits, obviously, derives from the Court's recognized negative principles. What are the various principles? (Read Smolla's paper for detailed discussion of what they entail and, with regard to the affirmative principles, bars one must meet overcome their forbearance of hate speech.)

Affirmative principles that protect certain hate speech:

• Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
• Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
• Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
• Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
• Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
• Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
  • Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
  • Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]

Negative principles that allow hate speech to be restricted:
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:

• The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
  
• The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
  
• Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
  
• Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
• The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
  
• The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]

By this point, one should have read the framework and my notes explaining how I've applied them. If one has done so, one will observe that in choosing to deny permits to the white supremacists/nationalist and their Antifa opponents, I've applied the requisite and situationally applicable "affirmative" and "negative" free speech doctrines and tests and that I've closely adhered to SCOTUS guidance in doing so. Accordingly, I ma confident my "hypothetical" decision to withhold permits would likely stand.

​

Notes:

1. See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
   
   "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
   
2. Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
   
   Obviously, the category of harm I'd aim to prevent is Category I.
   
   (For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)
   • Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
     • Category I -- Physical Harms.
       • Injuries to persons -- Examples:
         • Solicitation of murder
         • Incitement to riot on behalf of the speaker's cause
         • Reactive violence against a speaker in response to their message
       • Injuries to property -- Examples:
         • Solicitation of arson
         • Incitement to destroy property
         • Reactive violence against the property of the speaker in response to the message
     • Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
       • Injuries to social relationahips
       • Injuries to transactions or business relationships
       • Injuries to information ownership interests
       • Injuries to interests in confidentiality
     • Category III -- Reactive Harms
       • Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
       • Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
3. Once again, positive and negative liberty rear their heads.
4. One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
5. "Penalise" and "indeterminate" -- Observe that:
   1. The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
   2. The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
      
      That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
6. SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
   
   In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
   
   It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it.
7. Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
8. This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
9. Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.

Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.

I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.

Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.

By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so. The permit is to give LE a heads up so they can protect the people there. The permit is NOT for permission to exercise your constitutional rights. The permits are also required to be issued in a timely manner as well, so no dragging it out and hoping they get tired of waiting and give up. The ACLU even backed giving permits to the skinheads/nazis/kkk. I'm pretty sure it was the ACLU that filed suit when C'ville tried to revoke the permit.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so.

I agree with that decision if "size of the gathering" was the reason given for revoking the permit. Was it? I don't know; I didn't see the statements proffered to the court in defense of the revocation.

My basis for stating I'd have denied the permit is that the city hasn't the resources to handle/prevent the foreseeable harm I'd anticipate ensuing from the behavior of the people who would attend. The mere size of the crowd -- insofar as we're not talking about a couple dozen or two on each "camp" -- is incidental to my decision. I didn't argue my point based on mere crowd size and simple management of crowds of a large size.

 

[Tresha91203]

It wasn't sufficient at all! As I've said before, the police messed up! They are supposed to be separated for this very reason. If you were in charge of those permits, would you have put them that close with no barricade or wall of mounted cops? I wouldn't have. It doesn't take a psychic to know someone's going to get hurt or killed.

If you were in charge of those permits, would you have put them that close with no barricade or wall of mounted cops?

Were I in charge of issuing permits in Charlottesville, VA and aware that the permit was being requested for a white supremacist/nationalist gathering, I almost certainly wouldn't have issued white supmacists/nationalists a protesting permit -- on the grounds that hate speech isn't protected by the 1st Amendment and that it's reasonable to expect at least some of their speech would be hateful in nature -- in the town of Charlottesville. I would also have denied the counter-protesters a permit too were it apparent to me that they might attract Antifa and or white supremacist/nationalist contingents. Big cities are welcome, at their discretion, to forebear the sorts of conflagrations that result from clashes of those two groups, C-ville, and its overwhelmingly large student population, just doesn't have the resources to contain that sort of madness.

I'd have told them to submit a petition or send in written letters voicing their objections to removing the statue or reasons why it should be removed.

Did they overrule Brandenburg v. Ohio?

No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.

I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.


Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)

There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:

To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.

Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]

As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'

Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."

The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.

How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
​

The predominance of the affirmative model over the negative has not, however been absolute. The area of hate speech is one dimension whereby the Court has seen fit, to grant way to some applications of the negative model. The SCOTUS evaluates matters of proscribing expression using several doctrines, some of which, drawn from the affirmative model, protect aspects and forms hate speech and others drawn from the negative model and that the Court accepts as legitimate grounds for proscribing and/or punishing hate speech. My attestation that I'd have denied the permits, obviously, derives from the Court's recognized negative principles. What are the various principles? (Read Smolla's paper for detailed discussion of what they entail and, with regard to the affirmative principles, bars one must meet overcome their forbearance of hate speech.)

Affirmative principles that protect certain hate speech:

• Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
• Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
• Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
• Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
• Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
• Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
  • Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
  • Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]

Negative principles that allow hate speech to be restricted:
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:

• The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
  
• The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
  
• Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
  
• Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
• The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
  
• The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]

By this point, one should have read the framework and my notes explaining how I've applied them. If one has done so, one will observe that in choosing to deny permits to the white supremacists/nationalist and their Antifa opponents, I've applied the requisite and situationally applicable "affirmative" and "negative" free speech doctrines and tests and that I've closely adhered to SCOTUS guidance in doing so. Accordingly, I ma confident my "hypothetical" decision to withhold permits would likely stand.

​

Notes:

1. See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
   
   "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
   
2. Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
   
   Obviously, the category of harm I'd aim to prevent is Category I.
   
   (For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)
   • Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
     • Category I -- Physical Harms.
       • Injuries to persons -- Examples:
         • Solicitation of murder
         • Incitement to riot on behalf of the speaker's cause
         • Reactive violence against a speaker in response to their message
       • Injuries to property -- Examples:
         • Solicitation of arson
         • Incitement to destroy property
         • Reactive violence against the property of the speaker in response to the message
     • Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
       • Injuries to social relationahips
       • Injuries to transactions or business relationships
       • Injuries to information ownership interests
       • Injuries to interests in confidentiality
     • Category III -- Reactive Harms
       • Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
       • Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
3. Once again, positive and negative liberty rear their heads.
4. One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
5. "Penalise" and "indeterminate" -- Observe that:
   1. The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
   2. The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
      
      That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
6. SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
   
   In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
   
   It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it.
7. Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
8. This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
9. Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.

Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.

I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.

Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.

By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so. The permit is to give LE a heads up so they can protect the people there. The permit is NOT for permission to exercise your constitutional rights. The permits are also required to be issued in a timely manner as well, so no dragging it out and hoping they get tired of waiting and give up. The ACLU even backed giving permits to the skinheads/nazis/kkk. I'm pretty sure it was the ACLU that filed suit when C'ville tried to revoke the permit.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so.

I agree with that decision if "size of the gathering" was the reason given for revoking the permit. Was it? I don't know; I didn't see the statements proffered to the court in defense of the revocation.

My basis for stating I'd have denied the permit is that the city hasn't the resources to handle/prevent the foreseeable harm I'd anticipate ensuing from the behavior of the people who would attend. The mere size of the crowd -- insofar as we're not talking about a couple dozen or two on each "camp" -- is incidental to my decision. I didn't argue my point based on mere crowd size and simple management of crowds of a large size.

They used both arguments and both were shot down as unconstitutional. The permit process is their notice to get the resources. Call in the National Guard. Call in the State Police. Ask for assistance from the feds. Keep the 2 violent sides apart.

 

[usmbguest5318]

Were I in charge of issuing permits in Charlottesville, VA and aware that the permit was being requested for a white supremacist/nationalist gathering, I almost certainly wouldn't have issued white supmacists/nationalists a protesting permit -- on the grounds that hate speech isn't protected by the 1st Amendment and that it's reasonable to expect at least some of their speech would be hateful in nature -- in the town of Charlottesville. I would also have denied the counter-protesters a permit too were it apparent to me that they might attract Antifa and or white supremacist/nationalist contingents. Big cities are welcome, at their discretion, to forebear the sorts of conflagrations that result from clashes of those two groups, C-ville, and its overwhelmingly large student population, just doesn't have the resources to contain that sort of madness.

I'd have told them to submit a petition or send in written letters voicing their objections to removing the statue or reasons why it should be removed.

Did they overrule Brandenburg v. Ohio?

No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.

I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.


Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)

There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:

To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.

Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]

As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'

Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."

The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.

How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
​

The predominance of the affirmative model over the negative has not, however been absolute. The area of hate speech is one dimension whereby the Court has seen fit, to grant way to some applications of the negative model. The SCOTUS evaluates matters of proscribing expression using several doctrines, some of which, drawn from the affirmative model, protect aspects and forms hate speech and others drawn from the negative model and that the Court accepts as legitimate grounds for proscribing and/or punishing hate speech. My attestation that I'd have denied the permits, obviously, derives from the Court's recognized negative principles. What are the various principles? (Read Smolla's paper for detailed discussion of what they entail and, with regard to the affirmative principles, bars one must meet overcome their forbearance of hate speech.)

Affirmative principles that protect certain hate speech:

• Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
• Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
• Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
• Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
• Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
• Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
  • Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
  • Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]

Negative principles that allow hate speech to be restricted:
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:

• The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
  
• The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
  
• Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
  
• Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
• The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
  
• The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]

By this point, one should have read the framework and my notes explaining how I've applied them. If one has done so, one will observe that in choosing to deny permits to the white supremacists/nationalist and their Antifa opponents, I've applied the requisite and situationally applicable "affirmative" and "negative" free speech doctrines and tests and that I've closely adhered to SCOTUS guidance in doing so. Accordingly, I ma confident my "hypothetical" decision to withhold permits would likely stand.

​

Notes:

1. See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
   
   "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
   
2. Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
   
   Obviously, the category of harm I'd aim to prevent is Category I.
   
   (For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)
   • Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
     • Category I -- Physical Harms.
       • Injuries to persons -- Examples:
         • Solicitation of murder
         • Incitement to riot on behalf of the speaker's cause
         • Reactive violence against a speaker in response to their message
       • Injuries to property -- Examples:
         • Solicitation of arson
         • Incitement to destroy property
         • Reactive violence against the property of the speaker in response to the message
     • Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
       • Injuries to social relationahips
       • Injuries to transactions or business relationships
       • Injuries to information ownership interests
       • Injuries to interests in confidentiality
     • Category III -- Reactive Harms
       • Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
       • Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
3. Once again, positive and negative liberty rear their heads.
4. One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
5. "Penalise" and "indeterminate" -- Observe that:
   1. The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
   2. The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
      
      That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
6. SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
   
   In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
   
   It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it.
7. Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
8. This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
9. Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.

Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.

I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.

Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.

By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so. The permit is to give LE a heads up so they can protect the people there. The permit is NOT for permission to exercise your constitutional rights. The permits are also required to be issued in a timely manner as well, so no dragging it out and hoping they get tired of waiting and give up. The ACLU even backed giving permits to the skinheads/nazis/kkk. I'm pretty sure it was the ACLU that filed suit when C'ville tried to revoke the permit.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so.

I agree with that decision if "size of the gathering" was the reason given for revoking the permit. Was it? I don't know; I didn't see the statements proffered to the court in defense of the revocation.

My basis for stating I'd have denied the permit is that the city hasn't the resources to handle/prevent the foreseeable harm I'd anticipate ensuing from the behavior of the people who would attend. The mere size of the crowd -- insofar as we're not talking about a couple dozen or two on each "camp" -- is incidental to my decision. I didn't argue my point based on mere crowd size and simple management of crowds of a large size.

They used both arguments and both were shot down as unconstitutional. The permit process is their notice to get the resources. Call in the National Guard. Call in the State Police. Ask for assistance from the feds. Keep the 2 violent sides apart.

TY for sharing that. Would you mind also sharing your link to the briefs and decision? I'd like to read it.

Edit:
Nevermind. I found them.

 

[sartre play]

I see we have moved on from fighting about statues to fighting about permits, while back at government central? any one know what there doing?

 

[usmbguest5318]

Were I in charge of issuing permits in Charlottesville, VA and aware that the permit was being requested for a white supremacist/nationalist gathering, I almost certainly wouldn't have issued white supmacists/nationalists a protesting permit -- on the grounds that hate speech isn't protected by the 1st Amendment and that it's reasonable to expect at least some of their speech would be hateful in nature -- in the town of Charlottesville. I would also have denied the counter-protesters a permit too were it apparent to me that they might attract Antifa and or white supremacist/nationalist contingents. Big cities are welcome, at their discretion, to forebear the sorts of conflagrations that result from clashes of those two groups, C-ville, and its overwhelmingly large student population, just doesn't have the resources to contain that sort of madness.

I'd have told them to submit a petition or send in written letters voicing their objections to removing the statue or reasons why it should be removed.

Did they overrule Brandenburg v. Ohio?

No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.

I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.


Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)

There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:

To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.

Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]

As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'

Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."

The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.

How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
​

The predominance of the affirmative model over the negative has not, however been absolute. The area of hate speech is one dimension whereby the Court has seen fit, to grant way to some applications of the negative model. The SCOTUS evaluates matters of proscribing expression using several doctrines, some of which, drawn from the affirmative model, protect aspects and forms hate speech and others drawn from the negative model and that the Court accepts as legitimate grounds for proscribing and/or punishing hate speech. My attestation that I'd have denied the permits, obviously, derives from the Court's recognized negative principles. What are the various principles? (Read Smolla's paper for detailed discussion of what they entail and, with regard to the affirmative principles, bars one must meet overcome their forbearance of hate speech.)

Affirmative principles that protect certain hate speech:

• Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
• Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
• Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
• Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
• Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
• Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
  • Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
  • Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]

Negative principles that allow hate speech to be restricted:
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:

• The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
  
• The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
  
• Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
  
• Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
• The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
  
• The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]

By this point, one should have read the framework and my notes explaining how I've applied them. If one has done so, one will observe that in choosing to deny permits to the white supremacists/nationalist and their Antifa opponents, I've applied the requisite and situationally applicable "affirmative" and "negative" free speech doctrines and tests and that I've closely adhered to SCOTUS guidance in doing so. Accordingly, I ma confident my "hypothetical" decision to withhold permits would likely stand.

​

Notes:

1. See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
   
   "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
   
2. Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
   
   Obviously, the category of harm I'd aim to prevent is Category I.
   
   (For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)
   • Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
     • Category I -- Physical Harms.
       • Injuries to persons -- Examples:
         • Solicitation of murder
         • Incitement to riot on behalf of the speaker's cause
         • Reactive violence against a speaker in response to their message
       • Injuries to property -- Examples:
         • Solicitation of arson
         • Incitement to destroy property
         • Reactive violence against the property of the speaker in response to the message
     • Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
       • Injuries to social relationahips
       • Injuries to transactions or business relationships
       • Injuries to information ownership interests
       • Injuries to interests in confidentiality
     • Category III -- Reactive Harms
       • Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
       • Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
3. Once again, positive and negative liberty rear their heads.
4. One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
5. "Penalise" and "indeterminate" -- Observe that:
   1. The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
   2. The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
      
      That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
6. SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
   
   In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
   
   It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it.
7. Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
8. This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
9. Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.

Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.

I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.

Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.

By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so. The permit is to give LE a heads up so they can protect the people there. The permit is NOT for permission to exercise your constitutional rights. The permits are also required to be issued in a timely manner as well, so no dragging it out and hoping they get tired of waiting and give up. The ACLU even backed giving permits to the skinheads/nazis/kkk. I'm pretty sure it was the ACLU that filed suit when C'ville tried to revoke the permit.

They tried to revoke the permit. A federal judge ruled they could NOT refuse/revoke a permit due to the content of their speech and could NOT refuse/revoke a permit because of the anticipated size of the gathering. It is UNCONSTITUTIONAL to do so.

I agree with that decision if "size of the gathering" was the reason given for revoking the permit. Was it? I don't know; I didn't see the statements proffered to the court in defense of the revocation.

My basis for stating I'd have denied the permit is that the city hasn't the resources to handle/prevent the foreseeable harm I'd anticipate ensuing from the behavior of the people who would attend. The mere size of the crowd -- insofar as we're not talking about a couple dozen or two on each "camp" -- is incidental to my decision. I didn't argue my point based on mere crowd size and simple management of crowds of a large size.

They used both arguments and both were shot down as unconstitutional. The permit process is their notice to get the resources. Call in the National Guard. Call in the State Police. Ask for assistance from the feds. Keep the 2 violent sides apart.

They used both arguments

The defendants did not use the argument I presented.

From the temporary injunction decision document:

• "Kessler claims that the defendants' decision to revoke his permit was a content-based restriction..."
  
  My argument is not at all content-based. It isn't because I was well aware that would not prevail.
• "....defendants maintain that the decision to revoke Kessler's permit was motivated by the number of people likely to attend the demonstration..."
  
  My argument is not based directly on the quantity of people who will appear, but rather on the resources (lack thereof) of the C-ville police dept to prevent harm to the people who appear. Of course, the crowd size indirectly affects the choice I made, but the choice was made primarily on police resource limitations, not who was coming.
  
  You suggested calling the National Guard (I don't know what requirements must be met for a city to do that proactively.) or state police. The court may well have forced that to be done in the case of my permit denial. I really don't know.
• "...given the timing of the City's decision, the court is of opinion that the balance of the equities favors the plaintiff in the instant case."
  
  As I stated originally, I wouldn't have in the first place granted permits to Kessler or to the guy from UVA who obtained the counter-protesters' permit. Timing would not have been a factor in my scenario.

After reading the decision, I understand why the facts of the actual case (rather than those of the hypothetical I presented) resulted in Kessler prevailing. I've have found for Kessler too given the same set of facts.

 

[OldLady]

Perhaps CNN is citing the Southern Poverty Law Center for who is labeled a hate group. It's what SPLC does. Check it out.

I believe the Anti-Defamation League also makes such pronouncements. (?)

Iceberg is probably right that people are using the "hater" label rather freely in some places, especially this week. He is not right, though, that hate speech can not be defined. Out of that great long post you gave us, I did not see any concrete examples of what the Court considered to be unacceptable hate speech, though. I believe I did see a definition of sorts, but it was kinda hazy. You know me, Xelor, I need some clear examples in order to grasp a thing.
Iceberg won't give me examples either.
How about some help?
Why is it so hard for Iceberg to define hate speech? Why is all that you wrote about the court not including any? It is secret?

Why is it so hard for Iceberg to define hate speech?

Well, I can't say what goes through that guy's mind; I think too much of what he's said to me is obtuse, trite and insipid, so I stopped paying him any mind. Were his remark made by some of the individuals I know well enough to know they're merely ill/under informed, but not obtuse, insipid or trite, I'd posit that they cannot define hate speech because they construe it in the same way Potter Stewart construed pornography. Examples of such individuals include my kids prior to their having studied the 1st Amendment.

The thing is that "hate speech" is defined, though there are broader and narrower definitions of it. The dilemma is that although the term is defined, there are multiple accepted definitions of it. Most commonly, however, "hate speech" is understood/defined as:

...communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation. Hate speech takes many forms. Examples include Ku Klux Klan cross-burnings directed at racial or religious minorities; obscene phone calls threatening violence against women; epithets shouted at gay marchers; published diatribes against marginalized racial or immigrant groups; defacement of places of worship; and harassment of an interracial couple because of race.
​

Another writer offers this:

Hate speech has been defined in many ways. Perhaps the most useful definition characterizes as hate speech any persecutorial, hateful, and degrading expression that conveys a message of group inferiority about a historically oppressed group​

What is accurate to say, as one can see from the above, is not that hate speech is undefined, but rather that it's multiply defined. Even while there is no singly universal definition, the several definitions of "hate speech" are close enough for most applications of lay discourse. Of course, one might also simply peruse several of the acceptable ones and specify one of them as the definition applicable to one's own remarks. That way, if other parties to the discussion are okay with one's selected definition, they'll just go with it, or not okay with it, they'll air their objections.

(Obviously, if one is a recognized authority on 1st Amendment theory and practice, one can coin one's own definition. Any individual who's here going to do that will have already published that definition elsewhere and thus will reference it. Thus, in this context, an original definition is not really a valid option.)

Why is all that you wrote about the court not including any? It is secret?

The document I referenced provides a definition of "hate speech" and it provides a host of references (in footnote #2) that discuss the definitional challenges associated the term "hate speech."

Thank you so much, Xelor.

 

[Camp]

The right to assemble is a Constitutional right that has been verified and confirmed by SCOTUS on many occasions. Size and reason for a political/free speech assemblage are irrelevant. The government has access to crowd control and safety resources through normal law enforcement agencies and if that is not enough, they have access to National Guard. The permit process is 100% based on public safety concerns. The government has the right and obligation to ensure safety and so they can implement restrictions to ensure that safety.

Public demonstrations and assemblies go bad and get out of hand when the authorities issuing permits and planning fail in foresight and planning. Unfortunately, those governments, agencies, and politicians evade responsibilities and the blame always gets hoisted onto the demonstrators.

 

[usmbguest5318]

Perhaps CNN is citing the Southern Poverty Law Center for who is labeled a hate group. It's what SPLC does. Check it out.

I believe the Anti-Defamation League also makes such pronouncements. (?)

Iceberg is probably right that people are using the "hater" label rather freely in some places, especially this week. He is not right, though, that hate speech can not be defined. Out of that great long post you gave us, I did not see any concrete examples of what the Court considered to be unacceptable hate speech, though. I believe I did see a definition of sorts, but it was kinda hazy. You know me, Xelor, I need some clear examples in order to grasp a thing.
Iceberg won't give me examples either.
How about some help?
Why is it so hard for Iceberg to define hate speech? Why is all that you wrote about the court not including any? It is secret?

Why is it so hard for Iceberg to define hate speech?

Well, I can't say what goes through that guy's mind; I think too much of what he's said to me is obtuse, trite and insipid, so I stopped paying him any mind. Were his remark made by some of the individuals I know well enough to know they're merely ill/under informed, but not obtuse, insipid or trite, I'd posit that they cannot define hate speech because they construe it in the same way Potter Stewart construed pornography. Examples of such individuals include my kids prior to their having studied the 1st Amendment.

The thing is that "hate speech" is defined, though there are broader and narrower definitions of it. The dilemma is that although the term is defined, there are multiple accepted definitions of it. Most commonly, however, "hate speech" is understood/defined as:

...communications of animosity or disparagement of an individual or a group on account of a group characteristic such as race, color, national origin, sex, disability, religion, or sexual orientation. Hate speech takes many forms. Examples include Ku Klux Klan cross-burnings directed at racial or religious minorities; obscene phone calls threatening violence against women; epithets shouted at gay marchers; published diatribes against marginalized racial or immigrant groups; defacement of places of worship; and harassment of an interracial couple because of race.
​

Another writer offers this:

Hate speech has been defined in many ways. Perhaps the most useful definition characterizes as hate speech any persecutorial, hateful, and degrading expression that conveys a message of group inferiority about a historically oppressed group​

What is accurate to say, as one can see from the above, is not that hate speech is undefined, but rather that it's multiply defined. Even while there is no singly universal definition, the several definitions of "hate speech" are close enough for most applications of lay discourse. Of course, one might also simply peruse several of the acceptable ones and specify one of them as the definition applicable to one's own remarks. That way, if other parties to the discussion are okay with one's selected definition, they'll just go with it, or not okay with it, they'll air their objections.

(Obviously, if one is a recognized authority on 1st Amendment theory and practice, one can coin one's own definition. Any individual who's here going to do that will have already published that definition elsewhere and thus will reference it. Thus, in this context, an original definition is not really a valid option.)

Why is all that you wrote about the court not including any? It is secret?

The document I referenced provides a definition of "hate speech" and it provides a host of references (in footnote #2) that discuss the definitional challenges associated the term "hate speech."

Thank you so much, Xelor.

You're welcome.

 

[jc456]

We're the where their permit was approved? Nope so they were without permits