Portland mayor urges federal government to revoke permit for 'alt-right' demonstration, on the theory that 'hate speech is not protected'

Portland Mayor Ted Wheeler in January. (Don Ryan/Associated Press)

From Mayor Ted Wheeler's Facebook page (emphasis added):

On Friday three men Rick Best, Taliesin Myrddin Namkai-Meche, and Micah Fletcher stood up against bigotry and hatred. Two paid with their lives. A third was seriously injured.

Our community remains in shock and mourning. But we are also tremendously grateful to our heroes and their families for their selflessness and heroism. They will serve to inspire us to be the loving, courageous people we are meant to be.

As Mayor, I wanted to update you on a few developments:

1) I have reached out to all of the victims and their families, including the two women who were terrorized and subjected to such hatred and bigotry. I have offered my unconditional assistance and support, day or night.

2) I have confirmed that the City of Portland has NOT and will not issue any permits for the alt right events scheduled on June 4th or June 10th. The Federal government controls permitting for Shrunk Plaza, and it is my understanding that they have issued a permit for the event on June 4th.

3) I am calling on the federal government to IMMEDIATELY REVOKE the permit(s) they have issued for the June 4th event and to not issue a permit for June 10th. Our City is in mourning, our community's anger is real, and the timing and subject of these events can only exacerbate an already difficult situation.

4) I am appealing to the organizers of the alt-right demonstrations to CANCEL the events they have scheduled on June 4th and June 10th. I urge them to ask their supporters to stay away from Portland. There is never a place for bigotry or hatred in our community, and especially not now.

5) I am calling on every elected leader in Oregon, every legal agency, every level of law enforcement to stand with me in preventing another tragedy.

6) When and if the time is right for them, I would like to work with the families to find an appropriate way to permanently remember their sacrifice and honor their courage. Their heroism is now part of the legacy of this great city and I want future generations to remember what happened here, and why, so that it might serve to both eradicate hatred and inspire future generations to stand up for the right values like Rick, Taliesin, and Micah did last week.

The murders in Portland are, of course, appalling—but, no, the government may not deny permits for speech because it views the speech as promoting "bigotry or hatred," whether toward Muslims, blacks, whites, police officers, capitalists or whomever else. Nor can the government impose viewpoint-based timeouts for speech after certain events. If a police officer is murdered by anti-police fanatics, for instance, that cannot justify canceling the permit for a rally at which people speak out against the police, at which some attendees may hate the police, and at which a few attendees may indeed support killing police officers.

KGW-TV reports that Wheeler justified his position by saying, "hate speech is not protected under the U.S. Constitution." But that is not correct (see here for more legal details).

Indeed, the Supreme Court has made clear that the government cannot even impose viewpoint-based demonstration security fees, even when the demonstration has an overt white nationalist message (see Forsyth County v. Nationalist Movement (1992)). It is even clearer that the government cannot just deny permits for rallies that it views as associated with racism or hostility to certain religions. (The 7th Circuit's Nazi Skokie march case is just the most prominent example.)

The ACLU of Oregon, I'm pleased to say, takes the same view as I do:

1. The government cannot revoke or deny a permit based on the viewpoint of the demonstrators. Period. https://t.co/P9gcNPAumH

- ACLU of Oregon (@ACLU_OR) May 29, 2017

The full tweets from the ACLU of Oregon (I'm merging six together here):

1. The government cannot revoke or deny a permit based on the viewpoint of the demonstrators. Period.

2. It may be tempting to shut down speech we disagree with, but…

3. once we allow the government to decide what we can say, see, or hear, or who we can gather with

4. history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.

5. We are all free to reject and protest ideas we don't agree with. That is a core, fundamental freedom of the United States.

6. If we allow the government to shut down speech for some, we all will pay the price down the line.

(Note that I recently had the pleasure of representing the ACLU of Oregon in an unrelated free speech case.)