White supremacist protestors are trying to sue the Virginia city of Charlottesville for allegedly violating their civil rights. They claim that police provided inadequate security and then wrongfully declared their rally an unlawful assembly just before it began.
Despite Americans having “no constitutional right to be protected from danger by the police,” the supremacists may have a case if they can prove the police improperly declared the rally unlawful.
On the opposing side, however, counter-protestors and the mother of Heather Heyer — the 32-year-old woman killed by a vehicle during the weekend protests — could also have a case against those white supremacists if they can prove the supremacists’ racist and homophobic chants helped spark the violence that ended up killing Heyer and injuring 19 others.
In addition to chanting “Fuck you, faggots,” to counter-protestors, some white supremacists also hurled racial slurs at black counter-protestors. There is historic and legal precedent showing that such racist and homophobic language is not constitutionally protected free-speech.
Were the racist and homophobic Charlottesville chants “free speech”?
As Vox explains:
“In 1942 [in the case of Chaplinsky v. New Hampshire], the Supreme Court ruled that ‘fighting words’ are not protected under the First Amendment. The Court defines fighting words as ‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'”
In short, “fighting words” are speech thought to add nothing to public discourse as they’re intended only to harm people. But to claim that a person has used such “unprotected speech” or “fighting words,” plaintiffs must prove that the language was insulting, “uttered face-to-face to an individual” and likely to provoke retaliation.
All of that can be difficult to prove. Racial and homophobic slurs are undoubtedly insulting, but the supremacists could claim that their chants weren’t directed at anybody specific nor likely to provoke violence as they occurred from across police barricades.
Vox also says the Supreme Court has not often invoked the “fighting words” doctrine of the First Amendment when deciding cases, but lower courts have been inclined to use it, especially when the words precipitate an attack on a police officer or marginalized community member.
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