As 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 article answers 20 frequently asked questions about how the
government may legally respond when extremists choose to demonstrate
1. Why can't the government simply prohibit
extremist groups like the Ku Klux Klan from expressing their hateful views
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.
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
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.
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.
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.
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,
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
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
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
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
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
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.
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.
extremists claim First Amendment protection for illegal behavior that also
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.
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.
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
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.
the government prohibit extremist groups from participating in adopt-a-highway
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
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.
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.
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.
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
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
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