First Amendment limits on Nazi March

[Volokh, Eugene]

I take it the same would apply as to other groups that have historically
engaged in violence -- certain unions whose members have at times in the
past engaged in violence against strikebreakers, certain radical
environmentalist, animal rights, and anarchist groups, and the like.
Likewise, I assume, for the Communist Party; the CPUSA has not, to my
knowledge, engaged in much violence in the U.S., but neither has the
American Nazi Party -- of course, a party with the name "Nazi," with
whom the American Nazi Party sympathizes, has engaged in monstrous
violence, but the same can be said as to the CPUSA.  A pretty broad
exception to First Amendment protection, it seems to me,

Likewise, note that while the NAACP hasn't historically engaged in
violence, others involved in the boycott in Claiborne County were; so
there actually was a real threat of violence that, I would think,
colored the messages conveyed by the NAACP and the Black Hats -- plus a
personalization of that threat, given that boycott violators were
singled out for public identification and denunciation.  It would seem
odd to protect that speech, yet punish speech that's not said against a
similar backdrop of violence, even when the speakers' ideological
comrades have a history of violence.

Eugene

-----Original Message-----
From: Howard Wasserman [mailto:wasserma at fiu.edu] 
Sent: Thursday, October 20, 2005 9:17 AM
To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Re: Re: First Amendment limits on Nazi March


Or perhaps, as I heard one scholar suggest during a discussion of Black,
courts may be unwilling to read Claiborne for all it is worth.  If the
identical statements had been made by the white majority in town or by
the Klan, would the Court have been so accepting of "the police cannot
protect you all the time" as mere "rhetorical hyperbole?"   If not, the
case may not be able to do much to protect the expression of groups that
(unlike the NAACP) historically have engaged in violence--the Klan,
Nazis, violent anti-abortion activists, etc.  The reasoning of Black
(along with threats cases in lower courts, such as Planned Parenthood)
are very difficult to square w/ Claiborne Hardware if Claiborne is to
have any meaning.


Howard M. Wasserman
Assistant Professor of Law, FIU College of Law
University Park, GL 464
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
SSRN Author Page: http://www.ssrn.com/author=283130