On August 11 and 12, white nationalists came to march in Charlottesville, Virginia, where I live and work. The rally exposed many things, among them some of the challenges that Trumpism poses for freedom of speech today. Trump and his administration have raised a number of concerns in this arena: from threatening to muzzle the press and prosecute whistleblowers to attempting to pressure the NFL into suppressing football players’ protests, all the way through to using his own rallies to encourage violence against immigrants, Muslims, Latinos, African Americans, protestors, and others.
All of these are serious threats to free speech. While there are legal barriers to most of these—for example, there are precedents and specific laws to prevent Trump from retaliating against news outlets or the NFL—the law is far shakier in the face of a political leader encouraging his followers to violence and repression of minorities.
In many ways, Trump exposes the blind spots in free speech law, as well as in the way we frame disputes over speech in our popular discourse. Both are at their weakest in dealing with the connection between words and actions, and in responding to censorship or repression that is aimed at identity rather than political ideology, as the official and unofficial responses to the Charlottesville rally demonstrated.
In the days leading up to the now-infamous Charlottesville rally, local businesses begged the city to move the nationalists’ protest away from the downtown, fearing damage to their properties. The university hospital prepared for mass casualties. It was clear that this was likely not going to be an exchange of words or ideas.
Still, university police and administrators felt that they could take few steps to limit the scope or tenor of the torch-lit march on its grounds Friday night, because to do so would violate the First Amendment. And when the city attempted to move the site of the march to an alternate venue further from downtown—on the grounds that the rally would be much larger than the original location could accommodate—a local judge ruled that such a venue move was a violation of free speech. He found that the venue change was based on the ideology of the speakers (a content-based restriction, in the language of the law) and that he saw no compelling evidence that the event would be dangerous.
In some ways it is not surprising that Judge Glen Conrad arrived at this decision. It fits within common civil libertarian frameworks, among them content neutrality and what the Court decided in 1978 was the right of Nazis to march in a community of many Holocaust survivors: Skokie, Illinois. In this, Conrad’s decision avoided pressing questions about when speech and advocacy becomes a credible threat and what the implications for speech rights are when diverging groups meet on unequal ground (e.g. when one side is armed).
In the hands of Trump and some camps of his supporters,“free speech” can be a tool to suppress the speech and actions of women, LGBT people, and ethnic/racial and religious minorities.
The Charlottesville decision, and much of the commentary afterwards, followed a familiar terrain of legal history and precedent, largely concerned with content-neutrality, or the principle that lawmakers may not restrict expression based on its content. There is, however, a different historical trajectory of legal reasoning and cases that speaks to the need of the state to balance the threat of violence with the right of free speech: that of the public square and of expressive conduct. This tradition, further, reminds us that the Court can draw a line between violence and speech, as well as address structural inequalities in speech without suppressing minority speech rights.
The very right to march (on the university, on city streets, and in the parks) that the white nationalists claimed was a right crafted in the 1930s. The right to speak and assemble in public forums was created in 1939 in Hague v. CIO, while the right to picket (or demonstrate) was granted in 1940 in Thornhill v. Alabama. These rights were crafted explicitly in response to inequalities that had left some speakers sidelined within the public sphere. The streets were opened up as a public forum expressly to allow those without the means to buy airtime or space in the newspaper to have a forum in which to speak. The speech (and picketing) the Court was most concerned with was that of labor, which many on the left argued was systematically being suppressed in commercial media.1 As the justices said in the 1941 decision Milk Wagon Drivers vs. Meadowmoor Dairies, Inc., “picketing is the workingman’s means of communication.”
It was a means of communication, however, that had a much closer relation to violence than channels of communication like pamphlets, newspapers, and the radio. In the decades leading up to the 1930s, strikes had become a common tool of workers organizing to demand better wages and treatment. These strikes famously and frequently met with violent repression by police or private security forces, leaving scores dead. The violence is recorded in many names.
Look, for example, at the 1937 “Women’s day massacre,” in which 16 people were killed and over 280 injured when police efforts to remove women from the picket line in a steelworkers’ strike escalated into an all-out battle between striking workers and police; another example is the ongoing “Harlan County war” between Kentucky coal miners and mine owners that killed many and galvanized left-leaning writers and songwriters. Likewise, workers’ demands to speak in public places in the 1910s were known as the Free Speech Fights, due to their physical nature: International Workers of the World (IWW) members and radical speakers were often beaten by both police and vigilante groups when they attempted to hold meetings or protest.2
Within this context, the Court was careful to proscribe limits as to what types of advocacy could be termed speech. Picketing and demonstrations in the public square, both of which involve the advocacy of ideas and physical conduct, lose their speech protection when they become intimidation or “entangled with acts of violence.” Such speech can, per the 1941 Milk Wagon Drivers Union decision, “lose its significance as an appeal to reason and become part of an instrument of force” not protected by the Constitution.3 In this, the Court set a lower standard for such face-to-face, impassioned exchanges than for pamphlets, books, and newspapers (where freedom from regulation ended only when the speech in question presented a “clear and present danger”—a standard that has since been narrowed to speech that presents a credible danger of eliciting imminent lawless action).
In the creation of the public forum, then, the justices were both trying to prevent states and cities from suppressing minority speech and responding to structural inequalities in power and access to the public sphere. This is an approach that has been abandoned in more recent decades.
Since the 1940s, the Court has moved away from this approach. It has elaborated standards of content neutrality and elevated them above the structural inequalities they originally addressed. It has given us tests to draw the line between protected speech and regulatable action in cases of expressive conduct. We fear poor judgments and tyranny from government—and so wish to limit the ability of judges and justices on one hand, and elected officials on the other, to draw on their prejudices and ideologies in determining which speech to allow and which to restrict.
Out of this set of concerns grows one of the standard liberal lines on free speech today, that we cannot draw any distinctions among speech without risking state censorship and authoritarianism. This is the thinking behind the judge’s decision in Charlottesville, and the idea that we can’t limit the ability of white supremacists with guns from gathering in the streets—to protest the existence and rights of minorities—without sliding down a slope that would suppress dissent, such as Black Lives Matter protests.4
The equivalence posited by liberals as well as conservatives between white supremacist speech and the speech of Black Lives Matter is, arguably, a product of the legal culture we have built over the last 50 years. Slippery slope arguments rest on the idea that there is no principled way to distinguish among different ideas or speakers; that once one idea, group, or person is singled out by the law, there is no legitimate way of making a broad stand for free speech. But such evaluations only hold when power and inequality of access—the uneven playing field that structures speech as much as it does other social arenas—are not taken into account.
Refusing to take into account power and inequality of access, in turn, brings us legal arguments and decisions that equate corporate speech to that of citizens,5 and that present antidiscrimination measures as violations of free speech. This, for example, can be seen in the case of the baker in Colorado, who claims that a law forbidding him to deny service (a wedding cake) to a gay couple is a violation of his free speech (the Trump administration is making history by throwing its support behind the baker, mounting a free speech argument against antidiscrimination laws).6
Trump, who we might consider a free speech opportunist, has taken advantage of this discursive terrain. He rails against the freedom of speech of his adversaries and seeks ways to punish those who speak out against him. But he champions the free speech of those who are “censored” by antidiscrimination law or public censure. Arguments that all speech must be protected equally—or, its corollary, that any discussion of rules or parameters is an infringement of freedom—oppose the former but not the latter. To meet such a challenge, our popular discussions of freedom of speech, as well as our legal arguments about it, need to shift.
We do not need to turn a blind eye to inequalities of power in order to ensure freedom. We have managed to consider both in the past. In the 1940s, the creation of public forums and the recognition of picketing as speech showed a concern with the way that economic inequality led to inequalities in speech, as well as with state censorship and the potential for debate to turn violent. Other contemporaneous cases debated media regulation with an eye to the way new media of the day (radio) and concentration of ownership were restructuring the public sphere.7
The very right to march that the white nationalists claimed was a right crafted in the 1930s, but for the benefit of the labor movement on the left.
These legal decisions—and the debates that surrounded them—attempted to redress differences in power among speakers and address the differences among channels of communication (e.g., print, face-to-face communication, television, or the Internet). They demonstrate that it is possible to navigate conflicts between the social, public interest in free speech, and individual expressive freedoms.8
History will not have all the answers. The free speech cases of the 1930s and 1940s were not as attentive to racism, xenophobia, and similar forms of discrimination as they were to class. It is telling that the cases that define the public square do not include any cases about race, in an era in which the NAACP was actively dismantling Jim Crow and antilynching campaigns were among the ideas being internally censored by commercial radio and newspapers. Were the free speech fights of the early 20th century to take place today, they would be staged over a different set of seemingly intractable structural issues where ideological positions have a direct relation to inequality: race, nationality, religion, gender, and sexuality.
History may not have all the answers, but perhaps it can be a starting place for getting out of our current rut, seeing only slippery slopes and Manichean choices when we discuss the parameters and boundaries of free speech. We are in a moment where a variety of stakeholders, most visibly Trump, seek to use free speech arguments to undermine the liberties of people of color, religious and sexual minorities, and women—not to mention as a fig leaf for exhortations to violence. That is, in the hands of Trump and some camps of his supporters, free speech can be a tool to suppress the speech and actions of women, LGBT people, and ethnic/racial and religious minorities. Protecting the speech and rights of the latter may entail some limits on speech that tips over into intimidation.
How can we have this conversation without automatically being accused of trying to shut down free speech? We can begin by revisiting legal history, and extending past discussions about the line(s) between speech and conduct, especially violent conduct. This will, by necessity, entail thinking more rigorously and explicitly about the definition and parameters of expression, or what counts as “speech” within the law. 
- While labor was the central concern of most legal decisions relating to the public forum, religious minorities also spurred cases. Jehovah’s Witnesses challenged local ordinances that limited their ability to advocate and proselytize. The stakes of their speech also turned bloody, as Witnesses—seen as “un-American” and unpatriotic—were harassed and beaten by mobs in 1939 and 1940, on the eve of US entry to World War II. ↩
- Laura Weinrib’s history of the ACLU shows that advocates like the IWW conceived of the right of free speech as a right of dissent that included physical and economic action, rather than as a right of deliberation. The Taming of Free Speech: America’s Civil Liberties Compromise (Harvard University Press, 2016). ↩
- Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc. (1941). ↩
- In Judge Conrad’s decision, the imperative not to draw such lines overpowered concerns about guns and violence. For an eloquent genealogy and critique of the particular strain of liberalism that animates free speech discourse in the United States, see John Durham Peters, Courting the Abyss: Free Speech and the Liberal Tradition. ↩
- As Cass Sunstein points out, the typical First Amendment case in the 1930s and 1940s was brought by a minority group seeking leeway for dissent; since the 1970s, the typical First Amendment case has been brought by a commercial interest seeking leeway to do business. Democracy and the Problem of Speech (The Free Press, 1993). ↩
- The Court has a bad track record of finding that the expression of gay and lesbian speakers is subordinate to that of others, see Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston (1995) and Boy Scouts of America v. Dale (2000). ↩
- For more on the different free speech discourse of the 1930s and 1940s and the way it translated into citizen rights in media, see Victor Pickard, America’s Battle for Media Democracy (Cambridge University Press, 2015) and Sam Lebovic, Free Speech and Unfree News (Harvard University Press, 2016). ↩
- In a different vein, legal history also shows us how the civil libertarian turn shifted the logic of speech restrictions: away from judgments based on the content of speech and toward the nature of speech, as the Court began to create legal categories that were either “outside” the First Amendment or that deserved lesser protection (e.g., fighting words, commercial speech). See Genevieve Lakier, “The Invention of Low-Value Speech,” issue 128, no. 1, Harvard Law Review (2015). ↩
