The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Newark Proposed Ordinance Would Ban "All Actions by Hate Groups"

Yes, literally ban.


Here's the proposal, in relevant part (filed Thursday):

"Hate Group" means a social group that advocates and practices hatred, hostility, or violence towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation.

All actions by hate groups including groups characterized as White Supremacists, Nazi Groups, Aryan Nations the KKK and other such groups are unlawful in the City of Newark and are hereby banned because they have a history of violence targeting individuals' race, religion and national origin. Their history of said violence, tied to their message, will incite panic and fear within the City of Newark.

Well, except that:

[1.] The government can't ban even actions by people connected to groups that have present violent aims. Group membership can be forbidden only if the government shows "a knowing affiliation with an organization possessing unlawful aims and goals, and a specific intent to further those illegal aims" (Healy v. James (1972)). Especially when a national group "is loosely organized, having various factions and promoting a number of diverse social and political views, only some of which call for unlawful action," a local group connected to it (e.g., through sharing the national group's name and general ideology) can't be banned simply because of that connection.

[2.] Nor can such groups' activities (which of course include demonstrations and other constitutionally protected speech) be banned because they "will incite panic and fear."  There is no First Amendment exception for speech that "incite[s] panic and fear" generally. (There is an exception for speech that is intended to and likely to incite imminent illegal conduct, but obviously the proposal isn't limited to that.)

[3.] But the proposal is to ban "[a]ll action by hate groups," not just by groups "characterized as White Supremacists, Nazi Groups, Aryan Nations[,] the KKK and other such groups." That means that any group that, among other things, "advocates and practices hostility … towards members of a race, ethnicity, nation, religion, gender, gender identity or sexual orientation" is forbidden. Any group that urges hostility towards men, or whites, or evangelical Christians, or women, or blacks, or pro-holy-war Muslims would be forbidden, even if the group doesn't actually engage in violence. Such a ban is obviously categorically unconstitutional.

[4.] Of course, the government has ample power to restrict actual violence, whether or not it targets race or religion. It has ample power to punish people who conspire to commit violence, which is to say people who agree to commit violence together, with the intent of promoting such violence. It just can't ban groups on the grounds that they have a bad "message."

Thanks to Larry Seltzer for the pointer; see also this story from (Chris Sheldon). Special bonus from the draft ordinance: "WHEREAS, the Newark 1967 riots were triggered [in part] by … the death of Dr. Martin Luther King, Jr."