The Volokh Conspiracy
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The three California ACLU chapters put out a joint ACLU of California Statement: White Supremacist Violence is Not Free Speech:
Our country's greatest strengths are the diversity of its people and the principles of equal dignity and inclusion that unite us all. There are troubling events planned in our state in the coming weeks. This is an incredibly painful and difficult time for millions of Californians. For those who are wondering where we stand—the ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble. We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.
This seems like an odd statement, especially given that the context is presumably the call to rescind the permit for an "alt-right" rally in San Francisco:
Everyone, I take it, agrees that violence, white supremacist or otherwise, isn't speech. And the First Amendment doesn't protect people who "incite violence" in the sense of engaging in speech intended to and likely to promote imminent criminal conduct (the Brandenburg v. Ohio standard)—a category that the courts have always read narrowly, and that the ACLU has said should be read narrowly. But as I understand the traditional position of the ACLU, it is that speech and assembly must be allowed, even if violence and unprotected incitement (or threats) at the event are punished. (I'm also pretty sure that no one is legally going into San Francisco "armed to the teeth"; even the most law-abiding Californians are generally not allowed to do that.)
The question facing California government officials, as I understand it, is not whether to allow violence or constitutionally unprotected incitement. Rather, it's whether the government can ban events—of whatever political stripe—based on a fear that the speakers or some of the attendees may engage in violence (or in unprotected incitement). The answer, under modern First Amendment doctrine that the ACLU has generally helped develop, is "no." I would have thought that people want to know about the ACLU of California's position on that question, and not on whether "violence" (white supremacist or otherwise) is free speech.
I asked the ACLU spokesman who sent around the statement about this:
I blog at the Washington Post site, and I'm writing something about the ACLU statement on "White Supremacist Violence is Not Free Speech." Of course, violence of any sort isn't free speech, but I'm wondering what the ACLU's position is on the proposals to revoke the "alt right" rally permit in Northern California, and similar calls to ban such events. Can you tell me, please, if the statement is meant to address that, and what the ACLU's position on that would be?
The answer I got:
This is what we have to offer for now. We will circle back with you if anything changes.
UPDATE: The national ACLU has endorsed the ACLU of California statement:
We agree with every word in the statement from our colleagues in California. The First Amendment absolutely does not protect white supremacists seeking to incite or engage in violence. We condemn the views of white supremacists, and fight against them every day. At the same time, we believe that even odious hate speech, with which we vehemently disagree, garners the protection of the First Amendment when expressed non-violently. We make decisions on whom we'll represent and in what context on a case-by-case basis. The horrible events in Charlottesville last weekend will certainly inform those decisions going forward.