WEBVTT - Portland Mayor Risks First Amendment Dispute (Audio)

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<v Speaker 1>In the wake of the stabbing deaths of two men

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<v Speaker 1>and the slashing of another who intervened when apparent white

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<v Speaker 1>supremacists allegedly shouted anti Muslim comments at two women in Portland,

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<v Speaker 1>the mayor of Portland, Oregon, is asking the federal government

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<v Speaker 1>to cancel permits for two rallies scheduled to be held

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<v Speaker 1>in the city in the next couple of weeks. One

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<v Speaker 1>of the rallies is being called a Trump free speech

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<v Speaker 1>rally and the other is being called a march against Sharia,

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<v Speaker 1>and the mayor says that these are what he's terming

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<v Speaker 1>alt right rallies, but his request may raise concerns under

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<v Speaker 1>the First Amendment. Our guests to talk about the mayor's

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<v Speaker 1>request of the federal government is Eugene Vallaka, professor at

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<v Speaker 1>u c l A Law school and an expert on

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<v Speaker 1>many things, including the First Amendment. Eugene, always good to

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<v Speaker 1>have you on the program. Um we have you know there.

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<v Speaker 1>You've had these murders in Portland which are pretty horrific. Uh.

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<v Speaker 1>The mayor says that the city is grieving from them,

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<v Speaker 1>and it's a bad time for this kind of rally,

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<v Speaker 1>that it's gonna he he believes apparently is going to

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<v Speaker 1>express views that are consistent with at least some of

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<v Speaker 1>them will be consistent with the views of the person

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<v Speaker 1>who allegedly committed to murders here in another slashing. Is

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<v Speaker 1>there any basis, Eugene for the government to cancel the

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<v Speaker 1>permits for these rallies? No. Uh. Just to give an analogy,

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<v Speaker 1>imagine that there is a shooting of a police officer

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<v Speaker 1>by someone who believes police officers should be killed. Uh.

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<v Speaker 1>And is that a basis for canceling a planned rally

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<v Speaker 1>by people who harshly condemned police officers. Absolutely not. What

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<v Speaker 1>if the rally some of the people in the audience

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<v Speaker 1>will take the view that actually killing police officers are justified,

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<v Speaker 1>of course, a view that I totally disagree with. Is

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<v Speaker 1>that a basis for canceling the rally? Absolutely not. Uh.

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<v Speaker 1>Speech is protected regardless of its viewpoint, even if the

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<v Speaker 1>viewpoint expresses hostility based to Muslims, or hostility to police

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<v Speaker 1>officers and hostility to capitalists or to the one percent,

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<v Speaker 1>or or to strike breakers or whatever else. And Uh,

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<v Speaker 1>a rally can't be canceled just because of a fear

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<v Speaker 1>that some people, some tiny fraction of the audience might

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<v Speaker 1>actually turn that hostility into criminal violence, Eugene. Just for

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<v Speaker 1>the sake of argument, suppose that there was a way

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<v Speaker 1>to prove through memos of this group to emails of

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<v Speaker 1>this group, let's say, or flyers, that they intended to

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<v Speaker 1>incite violence with words and signs. Would that change anything?

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<v Speaker 1>So the Supreme Court has made it quite clear. There's

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<v Speaker 1>a case called Brandenburg View, Ohio from that deals with

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<v Speaker 1>exactly this issue. Supreme Court has said that UH. Speech

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<v Speaker 1>cannot be punished on the grounds that it's intended to

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<v Speaker 1>advocate crime unless it's intended to end likely to promote

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<v Speaker 1>imminent criminal conduct, which is to say, criminal conduct within

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<v Speaker 1>the next few minutes, hours, maybe day or two. Uh So, Yes,

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<v Speaker 1>if somebody is trying to organize a rally outside of

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<v Speaker 1>somebody some building, let's say uh uh, and UH is

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<v Speaker 1>egging on the crowd outside of that building saying let's

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<v Speaker 1>rush the place and burn it down, yes, that is

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<v Speaker 1>punishable incitement. But if older doing is they're trying to

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<v Speaker 1>instill views that they hope eventually will lead to criminal conduct,

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<v Speaker 1>that's constitutionally protected. And that emerged in part from the

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<v Speaker 1>communist air cases because in fact, there was lots of

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<v Speaker 1>evidence that communists who were trying to promote crime in

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<v Speaker 1>the source sense of violent revolution, which of course criminal

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<v Speaker 1>would have involved a great deal of murder, as of

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<v Speaker 1>course communist revolutions always have. But the but the Supreme Court,

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<v Speaker 1>after some fumbling around in the nineteen fifties, ultimately concluded

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<v Speaker 1>that even intentional advocacy of criminal conduct is constitutionally protected

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<v Speaker 1>again unless it's intended to unlikely to cause imminent lawless conduct,

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<v Speaker 1>And that protects people whether they are on the far

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<v Speaker 1>left or far right or far whatever else. You know,

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<v Speaker 1>there are sometimes people who are extremist eco activists or

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<v Speaker 1>animal rights activists who think it's justifiable to go out

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<v Speaker 1>there and say, attack, attack animal researchers. Unfortunately, some people

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<v Speaker 1>in my own university have been have been targeted this way. Uh,

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<v Speaker 1>And I think that that's that any advocacy of this

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<v Speaker 1>kind of of violence like that is is very bad,

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<v Speaker 1>but it's also constitutionally protective, and you can't shut down

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<v Speaker 1>um general animal rights advocacy, even pretty extreme on the

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<v Speaker 1>theory that maybe some of the people there might be

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<v Speaker 1>hoping that that's going to turn into actual violence at

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<v Speaker 1>some point in the future. Well, it's been reported. You

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<v Speaker 1>we only have gout a minute left, but it's been

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<v Speaker 1>a reported Eugene, that there are going to be counter rallies.

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<v Speaker 1>And doesn't the city have some legitimate concern that they've

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<v Speaker 1>got to make sure that, you know, you don't have

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<v Speaker 1>these rallies kind of going at each other and violence results.

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<v Speaker 1>That's why they hire police officers. And they hire the

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<v Speaker 1>police officers to keep the groups apart. Again, imagine there

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<v Speaker 1>was a Black Lives Matter rally or even a more extremist,

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<v Speaker 1>let's say, anti police rally, uh, and there were going

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<v Speaker 1>to be some counter protesters who are pro police. Would

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<v Speaker 1>you say, oh, let's just cancel the rally because it's

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<v Speaker 1>going to bring in counter protesters. No, you're gonna say,

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<v Speaker 1>let's protect the protesters and the counter protesters so they

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<v Speaker 1>can speak, which is their constitutional right, but they can't

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<v Speaker 1>physically attack each other, which of course is illegal, uh

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<v Speaker 1>and not their constitutional right. That's the job of the

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<v Speaker 1>police department. And UH, the government can implement a so

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<v Speaker 1>called Heckler's veto by which this mere fear of violent

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<v Speaker 1>reaction on the part of counter demonstrators is justification to

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<v Speaker 1>suppress the demonstration. That's Eugene fall A, professor at u

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<v Speaker 1>c l A Law School. Eugene, thank you very much

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<v Speaker 1>for being on Bloomberg Law today