A s one of American's leading organizations fighting anti-Semitism, racism and anti-government extremism, the Anti-Defamation League is keenly aware of the danger posed by bigotry and hatred in communities across the country. As a staunch supporter of the First Amendment, ADL also understands that the Constitution protects the free speech rights of all Americans -- even those whose opinions we deplore.
ADL believes that the best response to the words of bigots and extremists is more speech: speech that reflects the ideals of American democracy and tolerance. The League also believes that the government has an important role to play in balancing free speech with other values such as the maintenance of a civil, safe and orderly society.
This pamphlet answers 20 frequently asked questions about how the government may legally respond when extremists choose to demonstrate in public.
1Responding to Extremist Speech:
|1.||Why can't the government simply prohibit extremist groups like the Ku Klux Klan from expressing their hateful views in public?||
The First Amendment to the United States Constitution guarantees the right of freedom of speech to all Americans, even those whose opinions are reprehensible. To place an outright ban on the speech of certain groups would be unconstitutional and contrary to a fundamental tenet of American democracy.
|2.||Must the government allow an extremist group to march through a city's streets?||
The Supreme Court has acknowledged the importance of the right of individuals to express their views in town squares, streets, parks and other areas open to the public. The government must allow an extremist group, like any other organization, to march through a city's streets. The government may, however, impose reasonable restrictions on the demonstrators' speech, such as those discussed below.
|3.||May the government require the marchers to obtain a permit?||
Yes. One type of reasonable regulation is the requirement that anyone wishing to march or demonstrate must first obtain a permit. Although the government may require permits, it may not exercise "arbitrary power." It must administer the permit scheme fairly and treat all would-be demonstrators equally, irrespective of their message or point of view. Additionally, the permit scheme must not give too much discretion to the individual who decides whether or not to grant the permit. If demonstrators refuse to obtain a permit, then the government legally may stop their march.
|4.||May the government charge demonstrators a fee?||
The government may charge permit applicants a fee. However, such a fee must not be based in any way on the content of the applicant's speech. The fee must be no greater than is necessary to cover the administrative costs of processing the permit application, and government must not profit from the fee.
Also, government officials cannot be given too much discretion to determine how much to charge. The fee system must be based on "narrowly drawn, reasonable and definite standards." Further, the government may not impose an extra fee to cover the cost of policing a demonstration.
|5.||May the government require demonstrators to obtain insurance before allowing them to speak?||
The question of whether insurance requirements are constitutional remains unsettled. If an insurance requirement forecloses a group's ability to speak, courts likely will rule that the requirement is invalid. Courts, however, have allowed governments to maintain insurance requirements that are designed to accomplish a "significant government interest" and that do not discriminate based on the content of the speaker's message. For example, a court upheld a regulation that required protestors to post an insurance bond when using an expensive sound system provided by a public park.
|6.||What other types of restrictions, such as noise and location restrictions, may the government place on speakers?||
The government may impose reasonable regulations on the manner of a proposed demonstration. For instance, the government may limit the amount of noise allowed at a demonstration. It may restrict sound amplification devices that are incompatible with normal activity in certain locations at certain times. Courts are likely to approve regulations that limit noise that would interfere with school activities, for example.
Authorities may impose reasonable restrictions on the location, size and duration of demonstrations. For instance, maintaining traffic flow on the streets may be a sufficient reason to justify such restrictions. Danger to public property would allow the government to keep a massive demonstration out of a small park. The government may also be able to regulate a protest or demonstration that takes place in an area where other individuals cannot escape it. Thus, residential picketing may be regulated. The government, however, will always have to make attempts to accommodate the needs of the demonstrators by allowing them to protest at another location, or at another time.
On occasion, the location of a protest will constitute an integral part of the message the protestors intend to express. While government officials must take security concerns into consideration, they cannot place certain neighborhoods or communities totally "off limits" to a specific organization such as the Ku Klux Klan because they believe the Klan's message will be especially offensive in that neighborhood. If a location is generally regarded as an "open forum" where marches are allowed, courts may view skeptically a decision by local authorities to deny a permit to an extremist group to use that location. However, evidence provided by government officials regarding public safety will always factor into any court decision.
|7.||What actions may the government take if it believes that violence will occur at a march or rally or if violence begins to occur during a march or rally?||
The government has a right to have as large a police force as it believes is necessary at a march or rally; and it may arrest demonstrators who engage in criminal activity. Demonstrators who assault bystanders or overturn cars during a rally may be prosecuted for those crimes to the same extent that they would be prosecuted under ordinary circumstances.
The government may punish advocacy only if it incites imminent lawless action that is likely to occur. However, this standard is very difficult to meet. Moreover, courts will not grant a "heckler's veto." The animosity or violent reaction of an audience is not a permissible reason to silence the speaker.
Finally, the government may require demonstrators to apply for a permit a reasonable time in advance of a protest so that authorities may prepare security measures. It also may deny a permit if it can prove that protestors specifically intend to engage in criminal activity.
|8.||What other steps may the government take to maintain security, peace and order at an extremist demonstration or rally?||
Authorities may not stop a speech or demonstration simply because they fear that the audience will be hostile to the speaker's message. The government may use reasonable crowd-control measures to maintain security, peace and order at extremist demonstrations and counter-demonstrations. Authorities may, for instance, choose to bus the extremists to the rally, use magnetometers to monitor anyone entering the rally area, or physically separate the extremists from those opposing them. The government may establish a buffer zone to keep extremist speakers apart from their own audience.
Additionally, law enforcement may refuse to allow any weapons or personal items -- such as tape recorders, cameras, coins, pens, sticks or sign poles which could be used as weapons -- into the rally area. They must make exceptions, however, for properly credentialed members of the media, allowing them to carry items needed to perform their duties.
As noted above, it is also permissible to have a strong police presence at an extremist demonstration. The police are, of course, required to protect the speakers from the criminal acts of a hostile audience.
At least one court has said that authorities may put limitations on who can speak in the rally areas. For example, they may choose to allow only organized scheduled speakers and not random audience members to speak in the rally area. Such a restriction, however, must be applied to both the extremists and opposition demonstrators, and the policy must not discriminate based on any speaker's message.
|9.||Must the government allow extremists to hand out literature? What kind of restrictions may be placed on such activity at privately owned shopping malls?||Leaflets are one of the most highly protected forms of speech. The government may
rarely restrict, let alone prohibit, the distribution of literature. A blanket ban on
distributing noncommercial leaflets in places appropriate for political expression is
constitutionally prohibited. Concerns about littering are not sufficient to merit any
restrictions on leaflets. Even anonymous leaflets usually are protected.
Privately owned shopping centers may, in general, restrict the rights of individuals to hand out literature or protest peacefully on their property. However, state or local lawmakers may constitutionally enact a statute which grants individuals free speech rights in shopping centers. Further, some state constitutions provide greater guarantees for speech in this context than does the United States Constitution. For example, the Supreme Court of California has upheld, under the California Constitution, the free speech rights of citizens -- when "reasonably exercised" -- at privately owned malls. Thus, in California, authorities may not, in most instances, prohibit extremist groups from gathering signatures or engaging in other forms of protected expression at shopping centers.
|10.||May the government regulate door-to-door solicitation?||
Door-to-door solicitation is a constitutionally protected form of speech. Therefore, government may impose only reasonable time, place and manner restrictions on such activity. For example, a town may limit door-to-door solicitation to a certain time of day, but not ban it altogether.
|11.||May extremists claim First Amendment protection for illegal behavior that also involves speech?||
No. The government may punish illegal conduct even if it contains a speech component. For example, if an extremist puts bogus license plates with anti-government slogans on his car, he may be cited for violating motor vehicle laws even though the plates themselves contain an expressive element. Protestors who engage in acts of criminal intimidation or assault do not receive protection simply because they commit those acts while simultaneously exercising their right to free speech.
|12.||May the government regulate the wearing of masks or hoods in public?||
Courts are split on the constitutionality of laws that outlaw the wearing of masks in public. These laws are usually designed to prevent the Ku Klux Klan from intimidating members of the community. One court struck down an anti-mask ordinance on the grounds that it was overbroad and could be used to suppress entirely innocent activities. Another court upheld a state law that prohibits the wearing of a mask when it "is intended to conceal the wearer's identity and that the wearer knows, or reasonably should know, gives rise to a reasonable apprehension of intimidation, threats, or impending violence." The more specific and narrow the statute, the more likely it is to be constitutional.
|13.||May the government ban the display of certain offensive symbols, such as the Nazi or Confederate flag?||
No, the government may not prohibit offensive symbolic speech, such as the display of a Nazi or Confederate flag. The First Amendment prevents the government from banning symbols that it finds deplorable or offensive.
|14.||May the government ban flag burning or the KKK's practice of cross burning?||
The Supreme Court has held that burning a flag for purposes of peaceful political protest is protected under the First Amendment as a form of symbolic speech. The government may not prohibit flag burning just because it finds the burning of the flag offensive. Other laws, however, such as those governing arson or the use of fires in public places, still may apply to the burning of a flag just as they would apply to any inappropriate fire.
Although reprehensible, the racist practice of cross burning is protected, expressive conduct. Like flag burning, however, cross burning still may run afoul of neutral laws, such as anti-arson statutes or trespassing regulations.
|15.||May the government prohibit extremist groups from participating in adopt-a-highway programs?||
This is a developing legal question about which the courts are in conflict. An adopt-a-highway program enables community groups or businesses to sign up to keep clean a specific segment of a highway. In return, the organization receives a sign posted on its segment stating that it is responsible for the upkeep of that portion of the highway.
It appears that the First Amendment requires the government to allow extremist groups to participate in adopt-a-highway programs, in most cases. The government may not ban an extremist group from such a program on the grounds that the group's participation would stain the image of the state Department of Transportation or give the false appearance that the government endorses the group's message.
|16.||May newspapers reject offensive advertisements submitted by extremist groups?||
Yes. The First Amendment does not compel privately owned newspapers to provide a forum for the dissemination of the opinions of extremist groups. Publishers may use their editorial discretion to reject ads that they deem to be inappropriate for their publication.
Extremist groups -- particularly those that deny the reality of the Holocaust -- often attempt to place advertisements in university newspapers. In almost all such cases, student editors may reject the ads. The vast majority of student newspapers at public universities are run by students and are therefore not technically under government control. These newspapers, like student papers at private universities, are free to reject inappropriate advertisements. In rare instances, student newspapers at state universities are run by the school's administration itself. In these cases, the First Amendment prohibits the paper from rejecting advertisements based on their content.
|17.||May the government prohibit an extremist group from inserting its own leaflets into mainstream newspapers?||
As noted above, newspapers may refuse to sell advertising space to extremist groups such as the Ku Klux Klan, but that has not stopped Klansmen from using newspapers as a medium to convey their hateful propaganda. One new tactic Klan groups have used is to insert their leaflets into local commercial newspapers. Often, Klan members then distribute the papers to individual homes.
State laws may make it illegal for anyone to tamper with a newspaper. For instance, in 1998, the California legislature enacted a law making it a misdemeanor for a person to insert any advertisement into any free or for-sale newspaper without permission and to then deliver or intend to deliver the newspaper.
|18.||May the government regulate or restrict the insertion of extremist propaganda into commercial products?||
No one has the right to place anything in a commercial product without the permission of the product's manufacturer, distributor or seller. States may enact laws that make it a crime for an unauthorized person to place anything in a commercial product. For instance, California Penal Law states, "Any person who stamps, prints, places, or inserts any writing in or on any product or box, or other container containing a consumer product offered for sale is guilty of a misdemeanor." Under the law, "writings" include handbills, notices, and advertising.
|19.||May a public radio station prohibit extremist groups from sponsoring programs?||
This is a developing area of the law. Although no court has answered this question yet, it seems likely that the answer would turn on whether the public radio station is found to be part of the government. At least one court already has found, in a different context, that a public radio station is not a government actor. If a public radio broadcaster, such as National Public Radio, is found not to be part of the government, it is not bound by the First Amendment's prohibition against discriminating against a group because of the content of its speech.
If, however, a public radio station is found to be part of the government, then it is unlikely that it could refuse to allow an extremist group, such as the Ku Klux Klan, to sponsor a program. Such a decision would constitute impermissible discrimination based on content. The radio station conceivably could refuse to accept all "political" advertising, but it could not refuse the extremist group while allowing an anti-racist group to sponsor a show.
|20.||May cable television stations restrict or regulate extremists who want to appear on public access programming?||
No, a cable station may not restrict or regulate extremists who want to appear on public access television any more than it may restrict or regulate any other group. To treat the extremists differently would be to discriminate based on the content of their message.
It is permissible, however, for a public access channel to charge a user fee to a person or group seeking to air a program, as long as program content is not part of the fee criteria.
Though a cable system need not maintain a public access channel, the Cable Act of 1984 states that, when it does, the cable operator may not exercise any editorial control over a public access show's content. Cable stations, however, may issue disclaimers stating that they do not support the program's views and they may solicit and produce counter-programming.
A cable system also can make reasonable decisions about how frequently a program is shown, or how frequently an individual producer or sponsor can present his material. Further, it can prioritize which programs it airs, choosing to favor, for instance, locally produced material.