Freedom For The Speech We Hate: The Legal Ins & Outs Of The Right To Protest

Tyler Durden's picture

Authored by John Whitehead via The Rutherford Institute,

“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”


- Supreme Court Justice Oliver Wendell Holmes

James Madison, the father of the Constitution, was very clear about the fact that he wrote the First Amendment to protect the minority against the majority.

What Madison meant by minority is “offensive speech.”

Unfortunately, we don’t honor that principle as much as we should today. In fact, we seem to be witnessing a politically correct philosophy at play, one shared by both the extreme left and the extreme right, which aims to stifle all expression that doesn’t fit within their parameters of what they consider to be “acceptable” speech.

As a result, we have seen the caging of free speech in recent years, through the use of so-called “free speech zones” on college campuses and at political events, the requirement of speech permits in parks and community gatherings, and the policing of online forums.

Instead of encouraging people to debate issues and air their views, by muzzling free speech, we are contributing to a growing underclass of Americans who are being told that they can’t take part in American public life unless they “fit in.”

This attempt to stifle certain forms of speech is where we go wrong.

As always, knowledge is key.

The following Constitutional Q&A, available in more detail at The Rutherford Institute (, is a good starting point.

Q:        PROTEST?

A:         The First Amendment prohibits the government from “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Protesting is an exercise of these constitutional rights because it involves speaking out, by individual people or those assembled in groups, about matters of public interest and concern.



A:         The right to protest generally extends to public places that are owned and controlled by the government, although not all government-owned property is available for exercising speech and assembly rights. Places historically associated with the free exercise of expressive activities, such as streets, sidewalks and parks, are traditional public forums and the government’s power to limit speech and assembly in those places is very limited. However, expression and assembly in traditional public forums may be limited by reasonable time, place and manner regulations. Examples of reasonable regulations include restrictions on the volume of sound produced by the activity or a prohibition on impeding vehicle and pedestrian traffic.



A:         No, the First Amendment protects speech even if most people would find it offensive, hurtful or hateful. Speech generally cannot be banned based upon its content or viewpoint because it is not up to the government to determine what can and cannot be said. A bedrock principle of the First Amendment is that the government may not prohibit expression of an idea because society finds it offensive or disagreeable. Also, protest speech also cannot be banned because of a fear that others may react violently to the speech.  Demonstrators cannot be punished or forbidden from speaking because they might offend a hostile mob. The Supreme Court has held that a “heckler’s veto” has no place in First Amendment law.



A:         As a general rule, no. The government cannot require that individuals or small groups obtain a permit in order to speak or protest in a public forum. However, if persons or organizations want to hold larger rallies and demonstrations, they may be required by local laws to obtain a permit.



A:         The First Amendment protects the right to conduct a peaceful public assembly. The First Amendment does not provide the right to conduct a gathering at which there is a clear and present danger of riot, disorder, interference with traffic on public streets or other immediate threat to public safety.



A:         Your right to have a weapon at a protest largely depends state law and is unlikely to be protected by the First Amendment. Not all conduct can be considered “speech” protected by the First Amendment even if the person engaging in the conduct intends to express an idea. Most courts have held that the act of openly carrying a weapon or firearm is not expression protected by the First Amendment. That said, even if possession of weapons is allowed, their presence at demonstrations and rallies can be intimidating and provocative and does not help in achieving a civil and peaceful discourse on issues of public interest and concern.



A:         In recent history, challenges to the right to protest have come in many forms. In some cases, police have cracked down on demonstrations by declaring them “unlawful assemblies” or through mass arrests, illegal use of force or curfews. Elsewhere, expression is limited by corralling protesters into so-called “free-speech zones.” New surveillance technologies are increasingly turned on innocent people, collecting information on their activities by virtue of their association with or proximity to a given protest. Even without active obstruction of the right to protest, police-inspired intimidation and fear can chill expressive activity and result in self-censorship. All of these things violate the First Amendment and are things the police cannot do to censor free speech. Unless the assembly is violent or violence is clearly imminent, the police have limited authority under the law to shut down protesters.

Clearly, as evidenced by the recent tensions in Charlottesville, Va., we’re at a crossroads concerning the constitutional right to free speech.

Yet as Benjamin Franklin warned, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”

As I make clear in my book Battlefield America: The War on the American People, ensuring freedom for those in the unpopular minority constitutes the ultimate tolerance in a free society.

If ever there were a time for us to stand up for the right to speak freely, even if it’s freedom for speech we hate, the time is now.

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TeamDepends's picture

Soros must die.  Discuss.

chunga's picture

He's a really bad guy and if the fake news shit-lippers and the frauds in congress and the doj were legit they'd be checking his ass out, but they never talk about him.

The best news I've heard tonight is the retrial for a portion of the "Battle of Bunkersville" is over. It's a shame that there's so little interest or coverage of this. The trial was quite a sham.

No guilty verdicts in Bundy Ranch standoff trial

A federal jury in Las Vegas did not return any guilty verdicts Tuesday against four men accused of conspiracy and weapons charges for their roles in the 2014 Bundy Ranch standoff.

Creepy_Azz_Crackaah's picture

"...the First Amendment protects speech even if most people would find it offensive, hurtful or hateful. Speech generally cannot be banned based upon its content or viewpoint because it is not up to the government to determine what can and cannot be said."

This would be correct if the author simply inserted the word political between protects and speech. 

Incorrect: "...the First Amendment protects speech..."

Correct: "......the First Amendment protects political speech..."

Yelling fire in a theater, slander, yada, yada, yada...

And, the 1st Amendment protects political speech from government repercussion, not private repercussion.

Blue Steel 309's picture

Unless it is the corporate Oligopolies that own us and our ostensible government. Because they are "private". Load of crap.

25 years of Rush Limbaugh propaganda is not going to sustain this kind of corporate tyranny.

Creepy_Azz_Crackaah's picture

This is also crap: "That said, even if possession of weapons is allowed, their presence at demonstrations and rallies can be intimidating and provocative and does not help in achieving a civil and peaceful discourse on issues of public interest and concern."

The Colt 45 wasn't called The Peacemaker for no reason.

DWD-MOVIE's picture

I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. This is what I do…

NAV's picture

Free speech is a property right.  All rights are extensions of private property rights – speech, press, religion – all.

“Freedom of speech is a property right to one’s utterances, depending for its use upon a place (property) from which to speak, and upon its defense for the means by which to enter into an adversary relationship with those (including government) who would deny it. Abolish private property [as in the Soviet Union], and you abolish all rights and liberties with it. Law can no more survive without these rights in property than can a building be suspended from sky hooks.

“Neither has any foundation.” – Clarence B. Carson, Russia: The Reign of Terror, 1977

At bottom, the Soviet Union was a lawless nation. Those who ruled were bound by no laws because the people had no means of making them observe the law. The people had no representation in government; as now is happening to conservative representation in Congress silenced by the likes of Mitch McConnell and Paul Ryan. And, now, Trump. Then think Stalin whose rule for 25 years, 1928-1953, was “the most extensive and intensive reign of terror in all history.” And prepare to defend your rights before all dissent is wiped out and all individual resistance crushed, via terror. which is the ideological weapon used by communism to impose conformity.

SoDamnMad's picture

Can we question the 6 millionn? As I understand , in Germany you can't. So there is no freedom of speech in Germany. Figures.

Cloud9.5's picture

Thank God for this jury nullification of federal omnipotence.



HRClinton's picture

I'd rather see the movie "Soros must Die", than "Romeo must die".

medium giraffe's picture



Buckaroo Banzai's picture

How on earth is the "extreme right" guilty of a "politically correct philosophy"? The whole idea of "Political correctness" was invented and promulgated by communists.

And the idea that the right in this country has even the slightest bit of political power necessary to restrict anybody's free speech is ignorant and retarded. What planet does this fucktard live on?

Blanco Diablo's picture

I am still trying to determine who in the heck is the extreme right. The all knowing MSM have skewed meanings so much that I do not know what extreme right means.

Creepy_Azz_Crackaah's picture

It means that you believe in and stand by the Constitution as written - you stand up for its original intent.


Buckaroo Banzai's picture

Let me clear this up for you: if you are white, and you don't hate yourself for being white, you're a nazi.


sinbad2's picture

Nazism although having many of the features of the extreme right is a bit different, Nazis ran a sort of corporate socialism, where Government would financially assist corporations, like the US does. A strict right winger would not give public funds to a corporation.

Buckaroo Banzai's picture

Your knowledge of German National Socialism is grossly deficient. "Corporatism" has much more in common with Communism than any other ideology. Both Global Corporatism and Communism are global (NOT national) ideologies where the means of production are nominally owned by the public at large (either defined as "shareholders + stakeholders" or "the proletariat") but run for the benefit of a tiny managerial/political elite, while the masses are completely excluded from any decision-making other than participating in sham elections every few years.

The German economy from 1933 onwards was essentially on an emergency footing, continuously through 1945 (depression, fighting internal communist terrorists, and then of course, global war). In that respect, it had much more in common with FDR's New Deal economy than anything else--although, of course, the Germans did a vastly superior job than FDR did.

CNONC's picture

Part of the problem with political debate is that terms have been deliberately redefined or undefined.  Corporatism actually has nothing to do with business corporations, but is an ideology which views the nation state as a single body, composed of distinct parts, but each mutually dependent on the others.  It is, therefore, an ideology of the collectivist left, but is distinctly NOT globalist in nature.  Communism, particularly as practiced by the Bolshevics, is globalist in nature, but not corporatist, as it sees industry, business, government, social organizations as tools of the proletariate, rather than seperate parts of the body politic.

If we all still understood these terms the same way, we could have a debate.  But since knows what these words mean today, we can't even discuss them rationally.

Nobodys Home's picture

"where Government would financially assist corporations, like the US does."

In my limited foundation of knowledge, I'd think that is fascism.

Cloud9.5's picture

What is exactly the difference between a board of directors and a politburo? They wear different labels and different suits but at the end of the day they serve at the pleasure of the boss.  There is no democratic process.  It is an oligarchy.  They are tolerated because it is simply impossible for the boss to micromanage every aspect of the corporate state.  The clients are subject to the whims of these insiders.

Blanco Diablo's picture

Buckaroo, that I can understand, /s   LOL

sinbad2's picture

Extreme right means you are conservative and authoritarian.

If you think you have the right to tell other people how to live, you are extreme right.

If you believe your country has the right to go to another country, and make them live, as you believe they should live, you are extreme right.

Buckaroo Banzai's picture

So the Soviets, post 1945, were extreme right? I mean, they basically took over the entirety of eastern europe and imposed communism on them. "Made them live, as the Soviets believed they should live". Which is precisely your definition of "extreme right"...right?

I think you might want to re-think your definitions.

Nobodys Home's picture

Thanks Franklin School and the New School. Did I spell school right? It looks wrong. Weird word and I'm a bit inebriated. And what's the deal with I before E except after C?

NAV's picture

Interesting that Professor Stanley Fish birthed political correctness on America’s campuses, authoring an essay in 1992 that announced “There’s no such Thing as Free Speech and it’s a Good Thing Too.”  And “Good” got redefined by this Apostle of Political Correctness as “the will of those in power.”

Blanco Diablo's picture

I was (am) a Trumph supporter because there was not a alternative (Hopeium). He talked a great game and I wanted to be a believer, I am guilty of being a cultist.

I hate to admit that I am guilty of even worse, Cognitive dissonance!

I must admit to add insult to injury that  I still hope beyond hope that Trump will be better and I know that this will never happen.

Best to you my friends and I pray that times will get better!

Blanco Diablo's picture

Damm Pappy, WTF does that supposed to mean??

You must be a John MexiCain or Ms Linsay Supporter.

Nobodys Home's picture

It means he thinks you are a Brock Share blue troll and I'm thinking you might be as well.

Blanco Diablo's picture

You are wrong, I state facts as they may fall. Not always PC but the truth is the truth as much as it sux sometimes.

Someone said that Those who do not read history are doomed to repeat it.


If Pappy would have stated his disagreement with my post I would have answered him as a Gentleman.

I took Pappys comment as an insult so I replied accordingly.

gramps's picture

You didn't state any facts in your comment. Only ad hominem attack of Trump supporters which is exactly how leftists operate. They can't win an argument so they resort to ad hominem.

Blanco Diablo's picture

What facts do you request Pappy?

Jihad John MexiCain's support for Headchopper Jihadi to overthrow the Democratically elected Govt of Syria or McCain's sell out and abandonment of US Navy service personel lthat were murdered by our "allie"?  USS Liberty? I would hardly call Jihad John a Trump supporter.

Princess Ivanka's tears convincing her father to bomb the forces that were eliminating ISIS in Syria? That was a MAJOR FUBAR that lost a lot of his base supporters including myself.

What about The Mossad Agent at 666 Fifth Ave??  I did not vote for President Kushner, I voted for Donald Trump on his word that he stated during the campaign.

I sure as hell did not vote to install the Muslim supporting HR "Mohammed" McMaster,  I did not vote to sacrifice young Americans to die for Israeli Zionists and reignite the Afghanistan war

When Trump dumped Flynn and Bannon He dumped me and a hell of a lot of supporters Pop. Get your head out of your butt and make Trump live up to his word. Lets make Trump dump Princess Ivanka and her Mossad Agent Husband.

Let us join together and make MAGA real PawPaw, then I will show you mucho respect!!

gramps's picture

Can someone provide some examples of the right trying to suppress speech recently?

sinbad2's picture

"Our job as Americans and as Republicans is to dislodge the traitors from every place where they've been sent to do their traitorous work."(Joseph McCarthy)

"you're either with us, or against us"(GW Bush)

gramps's picture

I said recently asshat. And I said right, not globalist RINOs.

NiggaPleeze's picture


McCarthy was a globalist RINO?  Who knew?

But McCarthy was not opposing free speech as such - he was exposing the covert infiltration of Hollywood and the mass media by ... well, Bolsheviks.  As far as I know nobody was arrested for being a Bolshevik, just exposed.  Unfortunately now the entire government, media and industry is filled with Bolsheviks.

gramps's picture

I said recently. McCarthyism was 60 years ago. What the fuck! I'm surrounded by assholes!

HRH Feant2's picture

I find it both ironic, and terrifying, that the far left communists are the ones screaming bloody murder about shutting down speech they do not like. There is something beyond fucking creepy about how rabid they have become with regard to this matter. Rabid and scary.

Blanco Diablo's picture

PawaPaw, Your Senator McCain comes to mind: The coverup of the attack on the USS Liberty

There are Two Main reasons why Senator John McCain wants to keep the attack on the USS Liberty buried.
1- McCain’s Father (Admiral John S McCain) was in charge of US Naval Forces in Europe at the time of the attack and Admiral McCain was
involved in the COVER-UP, of the attack on the Liberty.
2- In America, huge sums of Money are needed to Win Elections at the National Level. (Congress, President) Wealthy American Jews give
huge sums of Cash to Pro-Israeli Congressmen and Congresswomen. Anyone deemed to be “anti-Israel” is cut off from Funding. As a result,
it’s very hard to Win an Election at the National Level, unless the candidate is a full time stooge to the powerful US Israeli Lobby. (AIPAC)

Forty-four years after the fact, I can only come to one conclusion
about what happened on June 8, 1967,” said Tourney. “The USS
Liberty was set up by the U.S. government to be sunk by the Israeli
military so that they could blame it on Egypt. After this attack, two
American aircrafts were launched carrying nuclear-tipped missiles in
order to bomb Cairo. That city was within three minutes of being
obliterated. Without a doubt, it would have started WWIII.”
Tourney lived through what has become the greatest military
cover-up and conspiracy in this nation’s history. Thirty-four
crewmembers were killed during this Israeli assault, and  174 were
wounded, most of them critically.
One of the subjects discussed during this interview was, what would
happen if the American public finally had their eyes opened about
this unmitigated act of war perpetrated by the nation of Israel.
“If the truth ever came out,” Tourney began, “it would change history
and how people felt about the Israeli state. If the mainstream media
devoted an entire week of stories to the USS Liberty and exactly

GoinFawr's picture

"Can someone provide some examples of the right trying to suppress speech recently?"

Nobodys Home's picture

That's not suppressing freedom of speech. It's trying to eliminate a subversive communist paid for bloc of brainwashed violent people trying to destroy the US.
Sign It!

GoinFawr's picture

"...violent people..."

Unjustified violence already has plenty of laws against it, no petitions required,  so you might as well just admit that it is about nothing more than suppressing antifascist dissent and speech, because you aren't fooling anyone.


Nobodys Home's picture

They're communists and fascists too. Just because they chose a name that says they're not, doesn't mean they're not. YOU aren't fooling anyone. Anti fascists. Yah right.
I will agree they have a right to speak. But not a right to knock me upside the head!

GoinFawr's picture

Again, not sure how this could be made plainer without something jostling your noggin'  but:

Even without signing anything ever: assault is already quite. illegal. the. last. time. I. checked.


"Just because they chose a name that says they're not, doesn't mean they're not."

Actions always speak louder than words, always, Word.


"They're communists and fascists too."



NiggaPleeze's picture


One can argue about whether terrorism designations work, but the point of designating ANTIFA a terrorist organnization is not to stop their speech - that could hardly be done, as it is obvious, the entirety of the MSM supports ANTIFA violence and essentially believes that anyone beaten or killed by ANTIFA deserved it because, you know, ANTIFA is anti-fascist and all fascists deserve to be beaten or killed (and if you disagree with that, you're a Nazi racist hater!).

The point is they are a violent thug organization and the designation would cut off their funding and meetings where they plan more intimidation and violence.

Just like declaring ISIS a terrorist group is not done due to protest their speech.  Capiche?

GoinFawr's picture

"...they are a violent thug organization..."

So, ISIS=Antifascism?

Hunh, as far as your "Antifascism=ISIS" equivalency goes, I can find nothing on it advocating ramming cars into crowds of folk; though I do recall a certain group that, exactly like ISIS, is alleged to have recently resorted to that sort of violent, reprehensible act; you planning on petitioning for their designation next? (j/k, 'sif, hey?)

 While we're on the subject, can you please outline for me how it is 'hypocritical' of antifascists to justifiably find it difficult to tolerate blatantly unjustified intolerance?  I wouldn't ask, but I am having a tough time imagining the twisted mental contortions it must take to jump to such an idiotic, pernicious conclusion, and, as you seem to have already plunged head first into that shallow pool, I thought you might be able to offer some sort of rationalization.

Also, for a variety of reasons I'm not much of a fan of most mainstream media myself, but would it be too much to ask for some real examples of the 'MSM' inciting actual violence against anyone, even worthless neoNazi turd burglars? I'm tired of being expected to take your ilk's  "sure 'nough!" word for it, especially when you lot constantly allege its prevalence.

" ....the designation would cut off their funding and meetings..."

Except what's to stop the antifascists from changing the name from "Antifa" to "Antifac", "Fascismisforshitbags", "SuckitNazi", "FuckFrancos"or whatever? Ans. NOTHING

So, no, the point is there are already a wide selection of laws to deal with "violent thugs" of any stripe, so all the designation would really accomplish is to effectively criminalize anyone organizing/funding any "antifascist" group, thereby squelching antifascist dissent and speech through the fear/intimidation of legal recourse and/or state sanctioned violence, which is, and always has been, the real point of the petition; you realizing it or not.

NiggaPleeze's picture

So, ISIS=Antifascism?

Dude, you need to learn how to read/comprehend.  I suggest starting in First Grade.  The obvious analogy I was making is the point of designating a terrorist group (i.e., not having to do with suppression of speech), not that two different groups are the same.

I can find nothing on it advocating ramming cars into crowds of folk; though I do recall a certain group that, exactly like ISIS, is alleged to have recently resorted to that sort of violent, reprehensible act

So now one individual is a "group", is that right?  So does that mean I can attribute violence by any black to all blacks?  Can I at least attribute your shocking idiocy to your entire family?

how it is 'hypocritical' of antifascists to justifiably find it difficult to tolerate blatantly unjustified intolerance?

First, they are not anti-fascists, they are revolutionary Bolsheviks.  Regardless, you may think violently opposing the intolerance of KKK is "justified", but others may think violently opposing the intolerance of ANTIFA, Jews, the mass media, or Democrats is "justified".  You just claim the right to intimidate, terrorize and harm those people you don't like.  Standard Bolshevik rubbish.

some real examples of the 'MSM' inciting actual violence against anyone

Again some reading comprehension would benefit you, please revisit First Grade.  It is quite obvious the MSM has been blaming only one side.  There are clear videos showing MSM propagandists stunned that someone could blame ANTIFA for bringing bats, bars, urine, feces, pepper spray and improvised flame throwers to SOMEONE ELSE's PROTEST with the goal to confront and intimate, if not beat and kill, them (see for example as one of countless examples this video:  What they are essentially saying:  the people they are attacking are "bad", therefor their intimidation and violence is justified.  And that obviously incites future violence against those "bad" people.  You would certainly "get" that if Trump were, say, to justify neo-Nazis bringing pipes, bats, pepper spray, feces and urine to a Gay Pride parade, and blaming the Gay Pride folks for the whole affair since they are morally reprehensible, no?  Ahh, even a Bolshevik retard (sorry about the tautology) can sometimes grasp reality.

Except what's to stop the antifascists from changing the name from "Antifa" to "Antifac", "Fascismisforshitbags", "SuckitNazi", "FuckFrancos"or whatever? Ans. NOTHING

Are you suggesting that only ANTIFA, and not ISIS, al Qaeda, Hezbollah, Hamas or anyone else designated as "terrorists", can change their name?  Or are you suggesting that terrorist designations don't work?  Or what exactly are you saying (if you have any idea that is).

there are already a wide selection of laws to deal with "violent thugs" of any stripe

These laws are clearly selectively enforced.  Indeed white nationalists are blamed for the poor thugs who have to stomp on them.  But again that's not the point of a terrorist designation.  The same logic applies to designating any of the designated groups as "terrorists".

Rebelrebel7's picture

Freedom of speech does not protect conspiracy to commit murder. Freedom of speech does not protect conspiracy to commit mass murder.