There is a powerful photograph circulating online from the July 8 Ku Klux Klan rally of an African-American Charlottesville police officer stoically standing at a crowd-control barrier, with robed Klansmen milling behind him.
That moment in time is the Constitution in action.
Some activists have been outraged that the city agreed to let the Klan hold a rally on public land and then protected them with law enforcement. Others even see it as a tacit government endorsement or extension of white supremacy.
But as repulsive and morally bankrupt as the Klan is, the city had no choice under the First Amendment.
This is a critical distinction.
The law, the Constitution,mustbe applied equally to all even (perhaps especially) toward those with whom we disagree.
Otherwise, what are we saying? That the law shall beunequallyenforced? That some people or some groups get a pass, while others do not?
This is precisely the kind of bias that the law is designed to prevent.
Ironically, once upon a time it was groups such as the Klan that received favoritism, while civil-rights protesters were met with officially sanctioned, even brutal resistance.
Through liberal, progressive new legislation such as laws banning the wearing of masks (i.e., KKK hoods) and through decades of efforts to ensure that the First Amendment is indeed applied more evenly, we have reached todays pivot point: Now it is the Klan that is the minority and the progressives who are the majority.
And, yes, the Constitution still protects the rights of the minority, even when we are disgusted by minority viewpoints.
Free speech is a two-way street. If we do not, in our time, protect the overriding value of free speech for all, then censorship may be turned againstuswhen the political pendulum next swings left or right.
If the Supreme Court overturned reams of jurisprudence and declared that hate speech was no longer a First Amendment right, conservative-leaning censorship could become law. Flag desecration and blasphemy could be barred, as well as vociferous attacks against government entities like law enforcement and the military.
This isn't all that far-fetched: Louisiana last year became the first state to offer police hate crime protections.
Wearea nation of laws: the Constitution, as well as law and order.
This is no new development. There are decades of U.S. Supreme Court precedents confirming that offensive or even hateful protest speech has First Amendment safeguards, as long as there is no "imminent lawless action."
Some rulings involve the Klan itself, including a 2003 case that overturned most of Virginia's ban on cross burning.
The court summed it up in 1989 over flag burning: "The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable."
If the city refused to grant a permit to the Klan for its rally, when it would grant one to any other group, then officials would assuredly be sued for content-based censorship and bias. The ACLU, which many Trump administration foes gladly donated to after the election, would proudly join as a plaintiff.
Free speech isn't free metaphorically and literally.
Taxpayers may bemoan that police were used for something as abhorrent as a Klan rally and that road closures were imposed.But this is precisely why we have and fund peacekeeping forces: to protect, and to restrain protesters of all stripes from mob rule.
We are not at all saying that peaceful champions of social justice are on the same moral tangent as white supremacists.
But the First Amendment is the best remedy for the First Amendment and that's the way it should be.