Capitol Journal: The 1st Amendment guarantees a right to ‘peaceably’ assemble. It doesn’t entitle Nazis to bear arms at rallies

Police escort a wounded man away from the Capitol in Sacramento after a clash between far-right groups and counter-protesters turned violent in June 2016.
(Steven Styles / Associated Press)

How do we protect ourselves from neo-Nazis armed with clubs, knives and shields?

Well, we can start by stripping them of their clubs, knives and shields. Plus helmets, pepper spray and any guns.

And take away the masks some wear to hide their identity from prosecutors.

The 1st Amendment does guarantee “freedom of speech” and “the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Note a key operative word: “peaceably.” I’m no constitutional lawyer, but it does seem that anyone armed with a club, knife and shield isn’t intending to “peaceably” assemble.


In fact, since the deadly violence at a Charlottesville, Va., white supremacist rally, California affiliates of the American Civil Liberties Union have issued a strong statement qualifying their traditional defense of the 1st Amendment.

“The 1st Amendment does not protect people who incite or engage in violence,” the ACLU statement reads. “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.”

So disarm them prior to their rally. Easier said than done, of course. That requires spending significant tax money for a huge police presence and physical barriers. Moreover, there’s not much that can be done about some nut job’s deadly car. And they’ll always bring their fists.

Right now there are lots of jitters in California, especially in the Bay Area. The far right is targeting this bastion of liberalism for rallies next weekend in Berkeley and San Francisco.

At least two dozen California political events have turned violent in the last two years, including bloody clashes between white supremacists and anti-fascists.

In the next month, the Legislature will hold hearings to determine what can be done to prevent violence and whether any new laws are needed. Senate leader Kevin de León (D-Los Angeles) has asked the Joint Legislative Committee on Emergency Management and the Senate Judiciary and Public Safety committees to conduct hearings.

That won’t be soon enough to help prepare for the Berkeley and San Francisco rallies, but there’s sure to be many more in the future. California is too tempting a battleground for the pugnacious far right. And the far left can’t resist combating them.

A blustery, divisive President Trump fires up both sides.

“We know they’re coming, so shame on us if we’re not prepared,” says Dan Reeves, De León’s chief of staff.

“The Nazis are looking for a fight, and what better place to come than California? The reason they’re going to Berkeley is because it’s perceived as the most liberal place in the world. They’ve come to the [state] Capitol because [legislative] leaders are leading the resistance to Donald Trump. So you can count on these people coming back and in large numbers.

“These people are looking to incite violence. They want to be martyrs — want to tell others, ‘We’re victims. We’re a small minority.’ It’s an irony that they hate minorities.”

Reeves adds: “Hate speech is one thing. We cannot regulate their speech. But we can regulate the manner, time and place they deliver the speech.”

A bloody battle at the Capitol last year between white supremacists and counter-protesters resulted in seven people being stabbed and 10 hospitalized. The California Highway Patrol asked Sacramento prosecutors to charge more than 100 brawlers, but only four were. Many hid their faces with masks so prosecution was impractical.

Updates from Sacramento »

The white supremacists tricked the CHP by showing up on the opposite side of the Capitol from where their rally permit required. And they immediately began battling with the counter-protesters.

“We were furious,” Reeves says. “You have to learn from these events. These people are not going to follow permits. When they say they’re going to come at noon, you should count on them showing up at 9 o’clock in the morning.”

Reeves envisions confiscating their weapons and confining them to a fenced area. Also, corralling the counter-protesters and keeping them in a separate, fenced pen. Make sure they’re disarmed, too.

Good luck with that.

“It’s challenging,” Reeves says. “It’s impossible to pat down everyone. Capitol Park is over a square mile.”

The legislative hearings, he says, also will examine “what’s feeding the growth of these organizations and how they’re financed. What can we do to stem their growth? How do we disrupt their recruitment process and cripple these guys so they can’t grow their fascist grassroots organizations?”

“Maybe California should look at classifying them as gangs,” he says. This essentially would classify them as criminal enterprises.

That could be tricky. The idea would be to criminalize violent mobs, but not ban constitutionally protected hate speech.

One thing we’ve learned from Charlottesville and all the other hate rallies is that they’re not merely about free speech. They seem more about inciting violence, and that’s a grave threat to free speech.

These gory white supremacist events are stark proof that the white folks who hold them clearly are not superior. Their sick minds are dangerously inferior.

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