As his city mourns two men who were killed after confronting a man screaming anti-Muslim slurs, Mayor Ted Wheeler is calling on federal officials to block what he called “alt-right demonstrations” from happening in downtown Portland, Ore.
His concern is that the two rallies, both scheduled in June, will escalate an already volatile situation in Portland by peddling “a message of hatred and of bigotry.” Although the organizers of the rallies have a constitutional right to speak, “hate speech is not protected by the First Amendment,” Wheeler told reporters.
But history and precedent are not on Wheeler’s side.
The Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech.
The high court did so in 1969, when it found that a state law banning public speech that advocates for illegal activities violated the constitutional rights of a Ku Klux Klan leader.
It did so again in 1992, when the justices found that a city ordinance prohibiting the display of symbols that arouse anger toward someone based on race, religion and other factors is unconstitutional.
And again in 2011, when the court ruled in favor of church members who picketed and carried signs with homophobic slurs at a soldier’s funeral.
Although certain forms of speech are not protected by the First Amendment, hate speech isn’t one of them, Eugene Volokh, a law professor and free speech expert, wrote last month. For it to be banned, experts say, it must rise to the level of threat or harassment.
“Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas,” Volokh said….