Portland Mayor’s Attack on Speech Is Illegal and Counterproductive

by | Jun 9, 2017

UPDATE: Since the time of writing, the first of these events went ahead as scheduled. The event stayed relatively peaceful, and happily, didn’t devolve into a full-on melee like those seen recently in some demonstrations in northern California. The second rally, initially planned for June 10, was canceled by the organizers voluntarily.

In the aftermath of the racially-motivated stabbings that occurred a few weeks ago, Portland’s mayor has publicly called for limiting free speech in the Rose City. Specifically, he has asked the federal government to revoke and deny permits for two upcoming political rallies.

While I don’t doubt the mayor’s sincerity, the move is problematic for several reasons. It’s plainly unconstitutional and, if we assume right-wing extremism is a major threat to Portland, this approach would be very counterproductive.

Background on the Attack

For those who may not be familiar, the tragic attacks took place this past Friday on the local light rail system. The assailant, Jeremy Christian, got on the train and reportedly started going on a rant that included several offensive remarks about minorities and Muslims. Eventually, he started harassing two female Muslim teenagers, and that’s when three other passengers attempted to confront him and calm him down. In response, Christian attacked these Good Samaritans, killing two and wounding the third. Christian fled the scene but was shortly apprehended by authorities.

Although the people Christian ultimately stabbed were white males, the context of the attack clearly indicated it was racially-motivated.

This understanding was reinforced when investigators and news outlets looked into Christian’s past behavior. Christian had posted a series of violent and extreme posts on Facebook. And earlier this year, he attended a free speech rally in Portland where he was witnessed saying racial epithets and giving the Nazi salute. This conduct at the rally caused other participants to eject him from the event entirely.

The Rallies and the First Amendment

The planned demonstrations have both been described as right-wing, but that designation is not very specific. The first rally, set for June 4, is framed as a rally for Trump and free speech, and appears poised to be a relatively standard political demonstration. This is organized by the same people that led the earlier rally and expelled the eventual attacker from their event.

When the organizer was asked by CNN if he identified as “alt-right”, he rightly suggested the term has no fixed meaning and described himself as a libertarian instead.

The second rally is billed as the March Against Sharia, and is sure to be more offensive in nature. The apparent purpose of this second rally is also absurd. But from a legal perspective, neither absurdity nor offensiveness actually matter for deciding whether the speech is protected, as we will see.

In his call for blocking the upcoming rallies, Portland’s mayor, Ted Wheeler, anticipated the First Amendment objection to his demand. Here’s what he said, as reported by CNN (emphasis added):

“My main concern is that they [the rally organizers] are coming to peddle a message of hatred and of bigotry,” Wheeler told reporters, referring to organizers of the two rallies. “They have a First Amendment right to speak, but my pushback on that is that hate speech is not protected by the First Amendment to the United States Constitution.”

The problem here is that Wheeler’s claim “that hate speech is not protected” flies in the face of long-established Supreme Court precedence on the subject.

The clearest test of whether “hate speech” could be covered by the First Amendment came in the case of the National Socialist Party of America v. Village of Skokie from 1977. In that case, a group of neo-Nazis requested permission to hold a demonstration in Skokie, Illinois, a town with a large Jewish population including some 5,000 Holocaust survivors. The neo-Nazi group planned to prominently display the swastika in their march, and residents sued to prevent the march.

Hate speech does not have a precise and universally-accepted definition, which is one of the problems with trying to regulate it. That said, if the term covers anything, most people would agree that neo-Nazis displaying swastikas in a Jewish community would qualify.

Yet in spite of these stark facts and the obvious sensitivity of the subject, the Supreme Court decided that the speech of overt, card-carrying Nazis in the US was protected by the First Amendment. And that precedent stands to this day.

The bottom line is that Mayor Wheeler may wish that hate speech was not covered under the First Amendment, but the Supreme Court disagrees.

The Wrong Response to Would-be Extremists

The other problem with the mayor’s call is that, if anything, it may actually increase the threat of violent extremism.

If this sounds counterintuitive, that’s because the normal approach the US government takes to combating extremism is almost exactly wrong. In recent years, the strategy has basically been to address indiscriminate violence with more indiscriminate violence. So the US approach has included backing repressive governments in the Middle East, torturing people, invading countries, and ordering large numbers of airstrikes that often kill innocent bystanders.

This approach essentially assumes there are some people that already have extreme beliefs which cause them to commit violence. So the solution is try to find and neutralize them before they strike.

In the case of the Middle East, the belief system in question is known as Salafism, a fundamentalist variant of Islam.

The problem with the approach outlined above is that it assumes that particular beliefs inherently lend themselves to violence. But in fact, they are separate concepts; it’s a distinction of ends versus means. Salafi Muslims will mostly agree on the way they would like the world to look (ends), but this does not dictate what means they think are appropriate for getting there. From a counterterrorism perspective, the means are really all that matter.

This is good news because we do have a basic understanding of what causes people to shift from using peaceful / political means towards using violent means. Former CIA analyst Cynthia Storer explained the full process on the Scott Horton Show, which I’ve quoted at length below:

STORER: People start with wanting to have some sort of individual belief, because something has gone wrong in their life, and, you know, whatever they believed before doesn’t work, or maybe they were born into a particular belief set. And then the next thing you want to do is you want to convince everybody else, right? “I believe this is wonderful, it’s good for me, now, I’m going to convince everybody it’s good for them too.”

And then, if it’s political, and if for some reason you aren’t getting very far in your social program–like the government is getting in your way for instance–then people start to talk about overthrowing the government, and that’s where you get into the violence factor.

HORTON: In other words, this sounds very universal. It’s not necessarily something that has anything to do with any branch of Islam or anything else. You could be talking about political radicals anywhere in the world.

STORER: It’s absolutely universal… any ideology you name, you can use this.

One of the keys to this is that that difference–that step between being peaceful about it and being violent about it–researchers have found over the last 30, 40 years…that the key right there is the government reaction. It’s the government doing things that to suppress people and make them afraid for their lives that then creates the counterreaction…

The terrorism comes after government does something to scare people to death.

What Storer is arguing here is that, far from being a solution, political repression of extreme views often just makes their proponents turn violent. This is the exact opposite of the desired outcome.

Of course, it’s fair to say that there are a few steps between the government blocking a political rally and the government taking actions that “scare people to death”. I’m not suggesting the mayor’s call is anywhere near that point. But it is a first step down a dark path.

It may sound strange, but if the mayor is truly worried about the threat posed by extremists of any stripe in Portland, the best thing he can do is allow them to exercise their First Amendment rights. It is the correct position both Constitutionally and strategically.

About Eric Schuler

Eric Schuler is a contributor to The Libertarian Institute, with a focus on economics and US foreign policy. Follow his work here and on Twitter.

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