olitical protests are not new. What is new is the message of the protesters1—
and the guns they carry when protesting. An example of this new type of protest
occurred in Charlottesville, Virginia, on August 12, 2017, when a group of heavily
armed white nationalists and supremacists held a planned “Unite the Right” rally,
chanting their message of “Blood and soil” and “Jews will not replace us.” The
group held a permit for this rally. A large group of student counter-protesters2
clashed violently with the group. One woman was killed when a rally-goer drove his
vehicle into a crowd of pedestrians.
The First Amendment to the U.S. Constitution protected the hate speech of the
white supremacists. “Hate speech” is abusive or threatening speech or writing
that expresses prejudice against a particular group, especially on the basis of race,
religion, or sexual orientation. 3 But should the First Amendment have protected the
rally organizers when they carried guns—and even semi-automatic weapons? Does
the combination of toxic hate speech and a visible arsenal create an exception to
First Amendment protection because it causes an incitement to reasonably foreseeable, imminent lawless action?
Two distinct constitutional interests were involved in the Charlottesville scenario: the First Amendment right to free speech and the Second Amendment right to
bear arms in an “open carry” state like Virginia. At least one pundit noted that the
exercise of Second Amendment rights by the white supremacists in Charlottesville
indirectly led to the suppression of free speech rights of those who protested their
hate speech, due to the presence of guns. 4 Although Washington is not an “open
carry” state, guns have been present at protests involving hate speech here.