In the wake of the stabbing deaths of two men and the slashing of another who intervened when apparent white supremacists allegedly shouted anti Muslim comments at two women in Portland, the mayor of Portland, Oregon, is asking the federal government to cancel permits for two rallies scheduled to be held
in the city in the next couple of weeks. One of the rallies is being called a Trump free speech rally and the other is being called a march against Sharia, and the mayor says that these are what he's terming alt right rallies, but his request may raise concerns under the First Amendment. Our guests to talk about the mayor's request of the federal government is Eugene Vallaka, professor at u c l A Law school and an expert on many things, including the First Amendment. Eugene, always good to
have you on the program. Um we have you know there. You've had these murders in Portland which are pretty horrific. Uh. The mayor says that the city is grieving from them, and it's a bad time for this kind of rally, that it's gonna he he believes apparently is going to express views that are consistent with at least some of them will be consistent with the views of the person who allegedly committed to murders here in another slashing. Is there any basis, Eugene for the government to cancel the
permits for these rallies? No. Uh. Just to give an analogy, imagine that there is a shooting of a police officer by someone who believes police officers should be killed. Uh. And is that a basis for canceling a planned rally by people who harshly condemned police officers. Absolutely not. What if the rally some of the people in the audience will take the view that actually killing police officers are justified, of course, a view that I totally disagree with. Is
that a basis for canceling the rally? Absolutely not. Uh. Speech is protected regardless of its viewpoint, even if the viewpoint expresses hostility based to Muslims, or hostility to police officers and hostility to capitalists or to the one percent, or or to strike breakers or whatever else. And Uh, a rally can't be canceled just because of a fear that some people, some tiny fraction of the audience might
actually turn that hostility into criminal violence, Eugene. Just for the sake of argument, suppose that there was a way to prove through memos of this group to emails of this group, let's say, or flyers, that they intended to incite violence with words and signs. Would that change anything? So the Supreme Court has made it quite clear. There's a case called Brandenburg View, Ohio from that deals with
exactly this issue. Supreme Court has said that UH. Speech cannot be punished on the grounds that it's intended to advocate crime unless it's intended to end likely to promote imminent criminal conduct, which is to say, criminal conduct within
the next few minutes, hours, maybe day or two. Uh So, Yes, if somebody is trying to organize a rally outside of somebody some building, let's say uh uh, and UH is egging on the crowd outside of that building saying let's rush the place and burn it down, yes, that is punishable incitement. But if older doing is they're trying to instill views that they hope eventually will lead to criminal conduct,
that's constitutionally protected. And that emerged in part from the communist air cases because in fact, there was lots of evidence that communists who were trying to promote crime in the source sense of violent revolution, which of course criminal would have involved a great deal of murder, as of
course communist revolutions always have. But the but the Supreme Court, after some fumbling around in the nineteen fifties, ultimately concluded that even intentional advocacy of criminal conduct is constitutionally protected again unless it's intended to unlikely to cause imminent lawless conduct, And that protects people whether they are on the far
left or far right or far whatever else. You know, there are sometimes people who are extremist eco activists or animal rights activists who think it's justifiable to go out there and say, attack, attack animal researchers. Unfortunately, some people
in my own university have been have been targeted this way. Uh, And I think that that's that any advocacy of this kind of of violence like that is is very bad, but it's also constitutionally protective, and you can't shut down um general animal rights advocacy, even pretty extreme on the theory that maybe some of the people there might be hoping that that's going to turn into actual violence at
some point in the future. Well, it's been reported. You we only have gout a minute left, but it's been a reported Eugene, that there are going to be counter rallies. And doesn't the city have some legitimate concern that they've got to make sure that, you know, you don't have these rallies kind of going at each other and violence results. That's why they hire police officers. And they hire the
police officers to keep the groups apart. Again, imagine there was a Black Lives Matter rally or even a more extremist, let's say, anti police rally, uh, and there were going to be some counter protesters who are pro police. Would you say, oh, let's just cancel the rally because it's
going to bring in counter protesters. No, you're gonna say, let's protect the protesters and the counter protesters so they can speak, which is their constitutional right, but they can't physically attack each other, which of course is illegal, uh and not their constitutional right. That's the job of the police department. And UH, the government can implement a so called Heckler's veto by which this mere fear of violent reaction on the part of counter demonstrators is justification to
suppress the demonstration. That's Eugene fall A, professor at u c l A Law School. Eugene, thank you very much for being on Bloomberg Law today