So to Speak podcast transcript: Charlottesville reflections with Rodney Smolla

June 4, 2020

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Hello and welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. As always, I am your host, Nico Perrino. It was three years ago this summer that a fierce dispute over the removal of Confederate monuments in Charlottesville, Virginia captured the national attention. The events that summer led to racial animosity, heated debate over our nation’s history and its founding principles, and threw one historic city into turmoil, ultimately culminating in death and tragedy during the weekend of August 11, 2017.

That August weekend White Nationalists descended upon Charlottesville for a third time in four months to protest the removal of statues of Confederate generals Robert E. Lee and Stonewall Jackson, which were located in Charlottesville parks. It was the White Nationalists right to protest, but how far does that right extend and who ultimately is responsible for the violence that ensued? Our guest today is the author of a new book about the Summer of Hate in Charlottesville, which explores the events leading up to that deadly August weekend, the cultural currents flowing through America that led to its outcome, and how we should think about free speech protections for protests and, yes, hate speech.

The book is titled Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate and the author is Rodney Smolla. Mr. Smolla is dean and professor of law at the Delaware law school of Widener University. He’s also a First Amendment scholar and an experienced litigator who argued the seminal Ku Klux Klan cross burning case, Virginia v. Black, before the United States Supreme Court, a case that is certainly relevant to what occurred in Charlottesville in 2017 and a case we discussed before on this show with his co-council, David Baugh.

Significantly, Dean Smolla was also appointed by then Virginia governor, Terry McAuliffe, to advise the Governor’s Task Force on Public Safety and Preparedness in response to civil unrest. The task force was formed in the wake of the Charlottesville events. Dean Smolla, welcome to the show.

Dean Rodney Smolla: It’s good to be with you, Nico. Thank you for having me.

Nico: I’d like to jump right in because I have a lot to cover. Your book was fantastic and I learned a lot about what happened in that summer of 2017 from your book.

Dean Smolla: Thank you.

Nico: By way of beginning, I’ve spoken with many First Amendment attorneys and advocates about the events in Charlottesville, some of whom appeared on this podcast to include former ACLU folks like Ira Glasser, Nadine Strosson, Norman Segal, Philippa Strum, Joe Gorra to a person they assign most of the blame for what happened that weekend in Charlottesville to poor policing. However, you write in the book that you personally find it difficult to assign condemnation or blame against law enforcement in Charlottesville in any poignant sense. Why is that?

Dean Smolla: Yeah. You know, I think, those folks that you mentioned are all my friends. I know a lot of them. They’re terrific people. Nadine Strosson was nice enough to write a little blurb on my book. I guess, once I dove into all this, I just thought it was too hat and too simple to just blame the police. The currents that were going through the country, the things that descended on Charlottesville that made it such a perfect storm, the … our deep divisions over race and identity, the American struggle to think through our free speech values, all of those things it seemed to me are important contributors.

President Trump and some of the negative impulses in our country’s culture that he has encouraged I think were part of it. So, it just felt too hat and too easy to simply blame police. They did make mistakes and there were lessons to be learned, but I think it’s a lot deeper than that.

Nico: So, the lessons to be learned moving forward, when we think about those, and when I think about past conflicts involving hate groups and counter-protesters, you know, you can’t think about these sorts of events without thinking about the Skokie case in Skokie, Illinois in 1978 in which the ACLU was also involved. I am currently making a documentary about the life and career of Ira Glasser, who took over the ACLU as executive director in the fallout –

Dean Smolla: Right.

Nico: — of the Skokie case in 1978. And, in the process of making that documentary, I’ve reviewed archival footage from all the major networks. All of them, ABC, CBS, NBC, covered the Skokie case and one of things that you noticed in reviewing that archival footage – And, Frank Collin and his band of neo-Nazis were regular protestors in the Marquette Park in Chicago.

Dean Smolla: Right.

Nico: And so, the police have a lot of experience working with them and the counter-protestors. But, one of the things you notice is just a tremendous police presence and the police were not afraid to get in between the protesters, in this case Frank Collin, and the counter-protesters. And, you didn’t quite see that in Charlottesville, at least in the coverage that I’ve seen.

Dean Smolla: Right.

Nico: And, as you acknowledge in your book, your book you draw parallels to a neo-Nazi gathering in Madison Square Garden, I believe it was like 1939, in which you said –

Dean Smolla: Right.

Nico: — New York City put out something like 7,000 police officers to prevent violence there.

Dean Smolla: Yeah. It was the largest assembly of New York police officers, I think, at any public event ever. I mean, they surrounded Madison Square Garden. Where, you know, it’s probably shocking for us to think. The Garden was filled with American Nazis supporting the Third Reich and Hitler at that time period and that was the respond of Mayor Laguardia to just descend on the Garden with overwhelming force. So, listen, don’t get me wrong. I’m not saying that it wouldn’t have been a lot better to have three times or four times as many police officers as there were in Charlottesville. Obviously, the Charlottesville Police Department couldn’t have done that.

They had everybody there, but you could’ve had National Guard, State Police. You could have had a much larger presence, and we certainly have learned that lesson. So, there was a similar Supremacist rally following the Charlottesville tragedies in Boston and the City of Boston pulled out the stops both in terms of physical barriers and police presence and avoided violence. And so, yes, that is probably the smart move. If you know that you’re gonna have warring groups descending in tight proximity, that’s probably the smart move going forward.

I guess what I was saying is, to me the confrontations were much more revealing about our country, our views of free speech, our struggles with race, than just to say, “Oh, it was an error. The cops blew it.”

Nico: And the cops, you know, they’re between a rock and a hard place. As you talk about the previous White Nationalist rallies in Charlottesville, the police seem to have been more proactive in some of those earlier rallies, but they took criticism for that.

Dean Smolla: Right.

Nico: You note that the police were essentially protecting the white supremacists from counter-protesting in the sense that their backs were to –

Dean Smolla: Right.

Nico: — the White Nationalists and they were facing the counter-protesters.

Dean Smolla: One of the things I’ve suggested … Obviously I’m not a law enforcement expert, but one of things I’ve suggest is, in the future, you know, if the bad guys, if the racial supremacists or the Klan guys are gonna be running a gauntlet and you’ve got to create a space that gets them to the park they’re supposed to be at or they have a parade planned and you know there are gonna be people screaming and jeering and yelling at them from the sidewalks, then you should have your officers deployed so every other one is facing inside and outside so half the police are facing the marchers and half the police are facing the counter-protesters.

That just sends the symbolic, you know, signal, “We’re protecting each of you against each of you. We’re keeping you apart and we don’t just have our backs facing the Nazis and our fronts and our weapons facing the counter-protestors because that creates the optic that the cops are there to protect the racists.

Nico: Yeah. I haven’t heard that before, that suggestion, but it seems very, like a good idea.

Dean Smolla: It’s a little … Maybe it’s silly in the mechanics, but, you know, the deeper free speech question is that, you know, there was a time in our history in which if somebody was an agitator and causing unrest and crowds were getting restless, our First Amendment law said you can remove the agitator. And, the famous case is Chaplinsky v. New Hampshire where Walter Chaplinsky was this over-the-top Jehovah’s Witness street preacher that was criticizing all sorts of other religious traditions and making people, you know, fidgety and it was starting to look there was going to be trouble.

And, a police officer, seemingly doing the right thing, tried to get him to chill, just kind of move on down. “Why don’t you just, you know, come back another day?” Walter Chaplinsky didn’t want to do it. He cussed at the officer and he got arrested and he took his case to the Supreme Court of the United States. The Supreme Court sided with the police and against Chaplinsky. So, that’s a case that’s one of the most famous free speech cases in American history. I think it’s now largely overruled, but if you think about it, what went down there is we allowed the angry crowd to silence the speaker who himself was not violating any law.

And, our law has since flipped around. It’s flipped to the opposite side. We now respect this notion called the heckler’s veto. We don’t want the angry crowd to be able to shout down the unpopular speaker. And, I think that’s the right rule, but that rule, as you say, really makes it tough on the police because they’re now in the uncomfortable, unseemly position of looking like they’re siding with the speaker that may not only be unpopular, but may be pretty much by most people universally condemned, like the white supremacists.

Nico: And, they have the job to keep them separate, but they also have the job to not keep them too separated, right? So, FIRE –

Dean Smolla: Yeah.

Nico: — FIRE co-founder, Harvey Silverglate, a criminal defense attorney up in Boston, after that Boston rally criticized the efforts of the police and I think he cited or quoted, who was it? Tacitus or someone. He said, “They make a desert and call it peace.” The police in Boston separated the protestors so much that there was no ability for either side to engage with each other.

Dean Smolla: Right.

Nico: And so, you’ve got to be careful about that too.

Dean Smolla: Yeah, you have to be careful about that and if we really want to think this through, you know, theoretically you want each side to be able to send their message to the other. And so, that’s the idea, that they be separate, but they have to be able to engage. Now, if we’re gonna be realists, the odds that the marketplace of ideas is really gonna matter a hoot in that situation is really low.

Nico: Yeah.

Dean Smolla: Because, I just can’t see – I just can’t see the people from Antifa converting the Klan and I can’t see the Klan converting the people from Antifa. And, there’s no real genuine interest in doing anything other than screaming at each other, but we do have this notion that you should be able to hear the other side’s jeering and screaming. So, you know, I agree with the comment that they have to be not so separate that the whole idea of the protest and the counter-protest is lost, but I also think realistically the notion that there’s gonna be any serious discussion is, you know, ridiculous.

Nico: So, you write that, “If I’m reticent in assigning any deep moral culpability to Charlottesville and UVA authorities, I have no reticence in assigning full responsibility for all the death and destruction in Charlottesville to Richard Spencer, Jason Kessler, and their many radical supremacist disciples.” These are the organizers, of course, of the Charlottesville rally. You also note that their message was fraught with death. That’s a paraphrase.

But, is this analysis unique to the facts of the Charlottesville case and the specific actions of its organizers or in your opinion, to the extent there is ever a hateful message that’s part of a protest or rally that turns violent. Do the hate mongers maintain the bulk of the moral culpability? I’m thinking here.

Dean Smolla: That’s a great question. I think it’s some of both. So, you know, right now there is ongoing litigation in Charlottesville in a civil case brought by the number of people who were injured in the violence against the planners of the Unite the Right rally, a number of the people you’ve mentioned by name and others. And, the hypothesis of that civil suit, which is going forward right now in federal court in Charlottesville, is that this was a conspiracy to trigger violence. That these folks knew there would be violent confrontations and they wanted that and that was part of their point. That was part of their tactic.

And, we’ll see if the evidence supports the allegations, but I wouldn’t be surprised if the evidence does support the allegation. So, and at least the record that I had, what I was able to put together in researching the book, lends plausibility to the notion that is what they had in mind. And so, if proven, there is moral culpability there. Now, you ask me another question which is, even if I am totally respectful of free speech, is there an automatic condemnation in which more moral culpability resides with the people who have messages of hatred and genocide and racial superiority and my answer to that is yes.

And so, although our free speech values require government to remain neutral, they don’t require me, Rod Smolla, to be neutral. And, I can say as between the counter-protesters who are … their message is inclusion and human dignity and the supremacists who have a message that comes from Nazi ideology and racism and anti-Semitism, I have no problem saying there are good guys and bad guys and when they come together and somebody gets hurt, there’s an automatic residue of blame that, in my view, I’m willing to assign to the bad guys.

Nico: So, to draw more parallels with Skokie, because I’m making this documentary and reviewing so much footage related to the case, Meir Kahane or Kahaney, I forget how you pronounce his last name, Rabbi Kahane of the Jewish Defense League said in one of the clips that we used in the documentary, “The Nazis will not march in Skokie. Should the Nazis appear, we will break their heads. There will be violence in the streets.”

And then, you’ve got Frank Collin on an ABC newscast saying, “I can promise this, that come hell or high water, Supreme Court or no Supreme Court, arrest or arrest, violence or no violence, Rabbi Kahane or no Rabbi Kahane, we are going into Skokie, by God, this year. We don’t care how much violence they’re gonna bring on their heads. We’ll give it back to them three times as much.” And then, I’m interviewing David Goldberger who was the lead attorney in that case and I asked him. Well, you know, the march in Skokie never happened.

I said, “Had the march had happened, do you think there would have been violence?” And, he said, “Yes, I think there would have been bloodshed.” So, you have here both sides, the protesters and the counter-protesters, signaling violence. Had the march had happened like it did in Charlottesville, how would we assign blame there? And, it’s just really hard to think about a situation in which you don’t depend almost wholly on the police or you see these quotes or hear these quotes and you forced all the rally all together. You say, “The facts of this case, what they’ve been talking about, this is a conspiracy to commit violence. We cannot let this move forward.”

So, I’m having a hard time, you know, because we think of Skokie as a seminal free speech case that is so indicative of our First Amendment values here in the United States. But, at the same time you have some of the leaders of the protesters and counter-protesters saying some of the same things that you site in your book as the protestors and counter-protestors saying leading up to the rallies in Charlottesville as well that could make them responsible for the conspiracy charges or could find them guilty of conspiracy charges.

Dean Smolla: Right. So, I don’t – I’m a litigator and like a lot of litigators I forget what I have written three days after the case is over, all right?

Nico: You and me both. I mean, I’m not even a litigator and I forget what I wrote yesterday.

Dean Smolla: Yeah. And so, I was just listening to some passages, which you quoted me in my book, and I said, “Gees, did I write that? That’s not so bad. I like the way I said that.” I’d forgotten I’d said it. But, look, my memory is that in Charlottesville there were not many counter-protestors who were planning violence. There were two different groups. There was a group of people from within Virginia and outside of Virginia who took the sort of classic, “Ignore them. Let’s have our own counter-rallies. Let’s not give them the dignity of shouting them down.” You know, “Let’s … Ignoring them is the best thing we can do.”

And, there were clergy within Charlottesville and government leaders and UVA officials that took that view. And then, there was the confrontation view. And, the confrontation view probably in terms of numbers and intensity kind of won out. I think there were more people, you know, who were of the view that the supremacists have to be confronted. So, people in the Black Lives Matter leadership and Antifa and other groups like that and many of the Charlottesville clergy took the side of confrontation. But, it wasn’t phrased and planned as violent confrontation. It was not, “We’re gonna bust their heads,” sort of thing, which I hear the Rabbi saying in Skokie.

And so, there may be a little difference there. Now, if you ask me were there people who were on the counter-protest side in Charlottesville who came wanting to punch somebody in the nose, wanting to, you know, nail somebody with a brick or a sign or something, probably. There probably were, but I don’t think that was the driving ethos there.

Nico: So, one of my other concerns about the civil cases going through in the wake of Charlottesville is, last year the Fifth Circuit Court of Appeals held that Black Lives Matter activist, DeRay Mckesson would potentially be held liable for the actions of a protester who allegedly threw a rock at a police officer during a protest in Baton Rouge that Mckesson helped organize.

Dean Smolla: Right.

Nico: Now, this had many First Amendment activists, including myself, very concerned because it seemed to run contrary to that 1982 case NAACP v. Claiborne Hardware, which you discuss in your book extensively.

Dean Smolla: Right.

Nico: And, that case held that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. So, how do you think about that case –

Dean Smolla: Yeah.

Nico: — in light of what’s happening in Charlottesville and how do you see them as distinguishable?

Dean Smolla: Yes. I read the Fifth Circuit case and I did think it was probably wrong. I don’t think the proof was there. But … And, it seemed to be almost a kind of strict liability. You plan the rally and the violence ensued.

Nico: Yep.

Dean Smolla: And, that struck me as inconsistent with Claiborne and a whole host of First Amendment cases that we could run through. In the Charlottesville case the accusations are far more pointed and detailed that there was behind-the-scenes logistical planning, anticipating violence, or using code for conspiring to engage in violence or provoke it. And so, that I think is the distinction. As is often the case in First Amendment litigation, you know, evidence matters and facts matter. There is not a single area First Amendment law where that’s not true.

You know, you have to prove actual malice in a defamation case. You’ve got to prove, you know, that speech was directed to the incitement of imminent lawless action and likely to produce it in an incitement case. You’ve got to prove a true threat like the Virginia v. Black case did. So, facts matter. I’m saying that I read Judge Moon’s opinion. He’s the federal district judge in Charlottesville that allowed the suit to move forward. He assembled an impressive compendium of factual material in that opinion that I think was enough to cross the line. And so, I think that’s the nuance I draw between the two situations.

Nico: Yeah. These First Amendment cases really depend on the facts and an intense analysis of the facts. And, kind of taking that fact-base analysis thread and looking a little bit further back, as many of our listeners know, leading up to the Unite the Right rally, the Charlottesville city administration sought to move the rally away from its originally scheduled location near the Robert E. Lee statue to a different sort of more remote location. Now, the Virginia ACLU and the Rutherford Institute intervened and represented the rally organizers, arguing that to move the rally would violate the organizers First Amendment rights.

And, as we were just talking about, when a judge is analyzing these sorts of efforts, they really take a fact-based analysis to see whether there’s actually sort of a clear danger that violence is imminent. The ACLU, Rutherford Institute, the rally organizers prevailed and the rally location was not moved. Now, you were also asked to represent the organizers, but declined. Now, if I’m recalling the book correctly, I don’t know that you actually, or you may have and I’m just not remembering it correctly, said what you thought of the judge’s opinion in that case.

Dean Smolla: Right.

Nico: Do you think the City had the right to move the rally at the time and if so, how does the post-hoc thinking about it go?

Dean Smolla: Right. So, Judge Conrad’s decision in that case was largely grounded in evidence that there were people making the decision in Charlottesville who were doing it out of hostility to the racial supremacists message. So, it was a decision tainted with a censorship motive. And, I don’t remember all the details, but things like minutes from a city council meeting or an email message or something like that. And so, because it didn’t appear to be a neutral decision grounded in public safety concerns, but a decision basically to kick the supremacists out to the State Park on the outskirts of Charlottesville while allowing the counter-protestors to continue in their venues in the downtown area of Charlottesville near UVA, it seemed like it was tainted with viewpoint discrimination.

And, that was the basis of the judge’s ruling and I think it was sound. I think the judge was right. I’m sure he feels remorse in a way because of the violence that ensued. I doubt that he feels – I’m guessing that he feels he made the right decision on the First Amendment merits as I think he did, but you can’t help but feel, you know, horrible when violence ensues. If there hadn’t been that taint – And this is a little – Sorry for my rambling answer.

Nico: No, this is important. Yeah.

Dean Smolla: Yeah. If there hadn’t been evidence of viewpoint discrimination and instead it appeared that the decision makers just thought that the downtown area was just too compressed … I’ve spent a lot of time in Charlottesville. You know, these squares are not large. The streets are narrow. It’s a town that’s difficult to get around in even in normal times. There’s always traffic snarls and things like that. And, you suddenly think you might have 10,000 people there and they’re opposed to each other and the City said, “Listen, you can all come, but let’s go where there’s more grass and we can put up bigger barriers and so on.” Then, that would have been a tempting solution.

Now, there’s one First Amendment problem with that solution and that is –

Nico: The statue.

Dean Smolla: — that marchers want to be in front of the statues. That’s their whole point. They want to save the statues. Maybe you could have had some sort of deal where, you know, 200 each around the statues and the other 5,000 had to go out to the park. So, it’s not inconceivable that something like that could have been pulled off that would have been permissible under the First Amendment, but I think that given the cards that Judge Conrad had in front of him, and you have to remember that hearing took place just a few days before the scheduled rally. I think he made the right decision.

Nico: Now, we’re talking about all the controversial aspects of Charlottesville today. Much was made of the presence of weapons in Charlottesville that weekend.

Dean Smolla: Yeah.

Nico: You argue in the book, the City had and has the legal authority to restrict the presence of weapons in sensitive locations, including at protests and rallies, consistent with the Supreme Court precedent which said that the government can restrict the bearing —

Dean Smolla: Right.

Nico: — of weapons in sensitive locations. But, historically sometimes the presence of weapons at protests serve symbolic expressive purposes.

Dean Smolla: Right. Right.

Nico: And, were used as defensive deterrents. I’m thinking here about the Deacons for Defense and Justice defending civil rights marchers in the Deep South in the ‘60s or the Black Panthers. So, how do you think about those competing concerns?

Dean Smolla: Yeah. So, this was one of the big things that the task force that Governor Terry McCauliffe appointed later, struggled with, and I took a pretty strong position in advising that task force. And, I think a lot of people probably disagree with me. You might, you know. But, I said that in my view the Second Amendment does permit the government to de-weaponize large rallies. I mean, none of us expect to be able to carry a gun into an NFL football game or, you know, Madison Square Garden or, you know, many concerts and things like that. We’re used to having to check weapons at the door for certain sorts of things.

And I said even in a public forum in which by tradition you have whatever Second Amendment rights you have to have your weapon on you and carry weapons, that when the forum, when the park or the streets are turned into a rally, it becomes like going into a stadium. And, for public safety reasons you can make everybody disarm. Now, we have no idea whether what I just said is right or wrong on the Second Amendment. The Supreme Court has not taken many cases since its original Eller decision, but it could well be right. And, I said I thought it made perfect sense as a matter of Second Amendment doctrine to say that.

Now, there’s a nuance, there are a couple of nuances that your question raises. One, by the way, it actually was part of the oral argument that I had when I argued in the U.S. Supreme Court, Virginia v. Black. It was a colloquy, if that can ever really be true, between me and Justice Scalia. By that I mean, he had his point of view and he was coming down hard on it.

Nico: Well, he gotcha is what he said, right?

Dean Smolla: Well, no. Justice Thomas is the one who said he got me.

Nico: Oh, was that Thomas? I’m watching the documentary about Justice Thomas right now. It’s pretty good.

Dean Smolla: Justice Thomas, that was the case in which he spoke for the first time in seven years and surprised us all by what he said and dramatically, I think, impacted the atmosphere in the courtroom and he got Justice Scalia to go with him. They were the only two justices that weren’t completely against me in that case where I represented the Klan and represented, you know, the rights of cross-burners. But, the particular dialogue involved the use of a weapon that was unloaded, that was Justice Scalia’s hypothetical, and could that be a threat.

And, I said, “Yeah, it could be a threat because the person threatened doesn’t know that it’s unloaded.” And, I said, “That’s different from a cross. You know that the cross itself is not gonna hurt you. It may mean in a particular case, ‘We’re coming after you,’ but it’s different in kind than a gun loaded or unloaded. But, to go back to the more interesting question, I do believe you might have a First Amendment right to bring an unloaded weapon to a rally if the rally’s about weapons. I mean, I think you might want to be able to have an unloaded gun because you want to make a point about the Second Amendment, something like that.

But, I’m of the view that Second Amendment doctrine is sufficiently flexible. And, I know this is a First Amendment show, but there’s only one number off.

Nico: No, there’s intersections here. I mean, you’re talking about symbolic speech.

Dean Smolla: The doctrine, it’s sufficiently flexible to say when we have large rallies, and maybe you add, and we anticipate the possibility of violence, we’re not going to allow loaded weapons. Now, you can get all kinds of cute problems like, “What’s a weapon?” You know.

Nico: You also have state constitutions to contend with. Like, I know Pennsylvania is –

Dean Smolla: And, by the way, the advice that I gave would run into big problems in Virginia because Virginia does have a panoply of laws that give a lot of gun rights and also that largely disable local governments from making some of these measures. So, my testimony was based on the U.S. Constitution. There were other issues that Virginia had to face involving its panoply of laws. But, again, I could be right, I could be wrong, obviously. But, I’m of the view that there’s not a Second Amendment right to attend large rallies that have been permitted, even if they’re in public parks and public plazas, with a weapon.

Nico: Yeah. My … In thinking about this and thinking about how things might have gone differently in Charlottesville if weapons were prohibited, I don’t know that things would have been all that much different because as you recount in your book, the events that occurred that weekend occurred all throughout the city and not just within the permitted rally location.

Dean Smolla: Sure.

Nico: I suspect that like not much of what happened that weekend actually occurred within the permitted rally locations.

Dean Smolla: Right. Right.

Nico: Even if you prohibited the weapons within the rally location, you would still have weapons elsewhere, including at the intersection where Heather Heyer was murdered, albeit she was murdered using a car. So, I –

Dean Smolla: The car was the weapon.

Nico: Yeah.

Dean Smolla: So, I don’t mean to say that banning weapons would have necessarily changed much in Charlottesville. But, what Virginia officials wanted to know, and a lot of people around the country wanted to know is, but can we ban weapons at least in those situations where we think it could be safer if we don’t allow them and my view is yes.

Nico: So, a good portion of your book provides the background of the competing theories of the First Amendment that have existed throughout American history. There’s the order and morality theory that predominated through most of America’s history and then there’s the marketplace theory, which you’ve eluded to already, which began its ascendancy, well, early in the 20th century, but really legally began its ascendancy in the 1960s. Now, you argue in your book that that Unite the Right rally in Charlottesville could have never happened if the order and morality theory of free speech continued to reign. Why is that?

Dean Smolla: Yeah. So, these are my own kind of nicknames. There may be other people that have used them before. I, when I teach this to law students or talk about it with anybody, think it’s a nice way to organize our thinking about free speech law and to really kind of talk about how the American tradition is unique in the world because most of the world still follows the order and morality theory. And so, the proof that if you adopted the order and morality theory, which by the way, the phrase comes from the Chaplinsky case, which I talked about a little bit earlier in our interview here.

If you want the proof that that theory would allow you to completely ban rallies like the Charlottesville Unite the Right rally, the case is Beauharnais v. Illinois, which is from my hometown, Chicago.

Nico: I’m from Chicago as well. Well, a suburb, Elmhurst.

Dean Smolla: I thought you might be. And, you know, I make a little bit – By the way, this is a little bit of a segue. It may be … I don’t mean to trivialize things, but, you know, in “The Blues Brothers,” one of the great Chicago movies of all time, there’s the scene where the Blues Brothers, you know, go after the Illinois Nazis. You know, John Belushi says, “I hate Illinois Nazis,” and they go after them. And, the Nazis come off in “The Blues Brothers” as silly, impotent, almost a joke. A little bit like David Duke comes off in Spike Lee’s movie, “The Black Klansman,” as kind of ridiculous.

And, just as a cultural thing, I note how, look how they were marginalized and thought of as ridiculous at that time and how they’re not marginalized now. I mean, their numbers may be marginal, but there’s a sense of the cultural presence of supremacists like Richard Spencer and so on that’s come a long way. They’ve made progress since those guys.

Nico: I think they’ve kind of waned since Charlottesville, but yeah.

Dean Smolla: Here’s the diversion. The case I was talking about is Beauharnais v. Illinois, which is a 1952 decision and it followed the Chaplinsky theory. The people in Beauharnais were part of a group called the White Circle League. They were racists in Chicago and they were passing out leaflets that were viciously racist because they were opposed to what appeared to them to be the insipient movement of the Democratic party toward civil rights. They thought that Harry Truman and others were moving towards respecting civil rights and they wanted to stop that. And, they passed out these vicious racist leaflets throughout Chicago.

And, the case went all the way to the Supreme Court of the United States and Justice Felix Frankfurter wrote an opinion that alluded to Hitler and the Third Reich and said, “Illinois does not have to allow this kind of speech.” And, it eats at the fabric of society. It tends to cause racial strife. We see where it led to in Europe and we know there have been racial tensions in Illinois. And, you can just ban this speech, make it a crime to say these things. So, that to me, that case was the high point of the order and morality theory in 1952.

Nico: It also established the group defamation theory, which I know is –

Dean Smolla: Exactly, which is, group defamation is a classic kind of version of the order and morality theory and it expresses the view that it’s wrong to say wicked things about Jews or blacks and of course it is wrong. It’s morally wrong. It’s reprehensible. And so, that was our law as late as 1952. And then, as you’ve already mentioned, everything changed in the ‘60s and we began to see this parade of U.S. Supreme Court opinions stretching out until, you know, this right now that reject that view.

And so, I think had that not happened, had we not migrated away from the order and morality theory, the City could have just said, “Hey, guess what, guys? We don’t allow this kind of talk in Charlottesville. You’re banned. You have no right to come into our streets and make these points.” Which is the law today in Europe. I mean, it’s the law in most places in the world.

Nico: At the end of your book, you kind of explain why you reject the order and morality theory of the First Amendment. And, again, I’m making this documentary, so a lot of what you say in your book has me reflecting on the documentary and there’s this scene in the documentary on the Phil Donahue Show, a very popular show —

Dean Smolla: Uh-huh. Sure.

Nico: — the latter half of the 20th century. And, there was an episode that Phil Donahue did, I believe in the late ‘80s or early ‘90s, about whether the government can ban the Ku Klux Klan from appearing on cable television.

Dean Smolla: Ah.

Nico: And, on that segment appeared a FBI informant who embedded himself within the KKK. Also, appeared was this Mr. Stoner gentleman who was a leader of a Ku Klux Klan group. Also, appearing was Hosea Williams, who you discuss in your book, a civil rights leader, a deputy of Martin Luther King, and the man who led the march through Forsythe County that resulted in –

Dean Smolla: Yeah.

Nico: — in people throwing rocks at –

Dean Smolla: Right.

Nico: — at civil rights leaders. And, one of the big heckler’s vetoes case, if not the biggest heckler’s vetoes case in American history. But, also appearing was Ira Glasser. Now, Ira … Ira Glasser the former executive director of the ACLU.

Dean Smolla: Right.

Nico: And, you know, Ira just suspected that when he appeared on that show that Hosea Williams, this civil rights icon, would be against him.

Dean Smolla: Uh-huh.

Nico: That Hosea Williams would take the side that the government can ban the Ku Klux Klan.

Dean Smolla: Uh-huh.

Nico: I mean, he would have every justification for doing so. He had rocks thrown at him –

Dean Smolla: Right. Right.

Nico: — by the Ku Klux Klan when he tried to march in Georgia in Forsythe County.

Dean Smolla: Right.

Nico: But, he took Ira’s side in that and surprised Ira. But, there was a very revealing question from a member of the audience during that segment. The audience member – Now, I’m gonna quote the audience member. She said, “Everybody’s talking about the First Amendment and we have a preamble to our Constitution that is supposed to promote domestic tranquility. It seems so clear of what would be right and what would be wrong.”

Dean Smolla: Yeah.

Nico: “This is promoting hatred. This is not promoting domestic tranquility.” And then, the problem with the order and morality theory of the First Amendment made itself crystal clear when the Ku Klux Klan leader, Mr. Stoner, intervened in her question and said, “Excuse me, but I’m the leading advocate of peace and tranquility in the country. I’ve declared a program that will have only a white Christian America and then we’ll have peace and tranquility and no more lawlessness.”

Dean Smolla: Yeah.

Nico: Peace and tranquility is in the eyes of the beholder.

Dean Smolla: Yeah.

Nico: You know, so while your peace and tranquility theory might eradicate the hate groups in Charlottesville, Virginia or Chicago, Illinois, what are they gonna do in Forsythe County or in Montgomery, Alabama in the ‘50s.

Dean Smolla: Right.

Nico: Or, in Selma.

Dean Smolla: Right. Right.

Nico: And then – You didn’t have this in your book. I was waiting for you to quote it. But, I know books go to print long before they’re actually released. Susan Bro, the mother of Heather Heyer –

Dean Smolla: Yeah.

Nico: — during the October Open Future Festival hosted by The Economist was asked point blank by her interviewer, “Do you believe that those protesters that were there in Charlottesville that day had the right or should again have the right to express their views?” And, she responded, “I do.” I mean, again –

Dean Smolla: Yeah.

Nico: — someone who had every right to say no because her daughter was murdered by one of them.

Dean Smolla: Yeah.

Nico: She then goes on to give a very moving argument for why free speech must be defended and the order and morality theory must be rejected. She said, “My big concern with losing free speech is, who makes the decision what speech is allowable and what speech is not? And, once you set it up so that there’s always one group deciding, that group can change at any given moment.”

Dean Smolla: Right.

Nico: So, that’s the concern with [inaudible – crosstalk] [00:41:55].

Dean Smolla: Yeah. And, I think that’s exactly where I came out. I’m suspicious that the marketplace works very often where you know the opposite is true. We know that often the hateful messages seem to prevail. I mean, they obviously did with the hysteria that overtook Germany. They do all the time. And so, the idea that somehow truth will emerge because of this back and forth of ideas, it sounds nice, but I’m skeptical. I think the argument is the one that you’ve made, the legitimacy argument. And, here is where I think I often struggle with my own children. I have a daughter who was an activist at Yale. Her name is Corey and she was in the midst of a lot of these debates at Yale.

I went to Yale to. I went to Yale as a football player. She went as someone who actually was smart enough to get in on her own. But, you know, her view, it’s a lot like the woman who asked the question on the Phil Donahue Show. Her view is, “Well, come on. There’s a difference between the free speech rights of Martin Luther King and the civil rights movement because they were on the side of right. They were on the side of righteousness. They were on the side of equality. They were on the side of dignity.” We can make distinctions between good ideas and bad ideas, between good people and bad people. And, the racists are bad and we all know it.

And, it’s wrong to say the First Amendment doesn’t allow society to make those judgments. I think that’s a powerful argument and it’s one in the end I don’t embrace because of the legitimacy problem, the who’s gonna decide problem. But, I don’t like to trivialize it because I think it has a lot of resonance and a lot of power and it has a pull on us. And, that’s why I know we’re coming to the end of the show pretty quickly, but one of the things I do point out is that even though the marketplace idea has become the dominate view in American law, the order and moralities theory is still the theory we follow in large pockets of our society.

And so, we use the order and morality theory in the workplace. If you’re a racist in the workplace you can lose your job and in fact your employer can be in trouble if they don’t fire you. We use the order and morality theory to a large degree in universities. Even though people have a right to scream at each other on the college green, they have to treat each other with a reasonable amount of dignity, you know, in other settings like classrooms and athletic teams and things like that.

We used, as lawyers, we used the order and morality theory. I can’t mouth off to a judge and not expect to be thrown in court, you know, thrown in jail for contempt of court. So, both theories are part of our society, but we let the marketplace reign in the open spaces.

Nico: Yeah. I think within FIRE, and I think within a lot of First Amendment advocates, we just don’t see the marketplace justification as compelling as it maybe was in the 20th century. Here at FIRE our president, Greg Lukianoff, has this other theory called the lab and the looking glass. He says, “You know, the marketplace theory, yeah, truth might win out, but it’s usually in the long term and sometimes it loses out in the short term. But the more important value is that allowing for free speech allows us to see the world as it is, which is important not just when people believe hateful things, but especially when they believe hateful things.”

I mean, censoring someone is like breaking a thermometer. You know, you might know what the temperature is anymore, but the temperature still remains.

Dean Smolla: Right.

Nico: And, it still creates public policy problems that must be addressed in a more significant way than just finding them or throwing them in jail. I think the most compelling thing that you site in your book and the strongest challenge to the marketplace theory is that, you know, are we really going to change our minds about the value of inclusion in our society? You quote a UVA professor who talks about it.

Dean Smolla: Right.

Nico: And, I think, I hope not. But, there’s more to it whether the truth is gonna win out or lose. I mean, there’s also all the John Stuart Mill arguments that, you know, if you foreclose an argument, you begin to hold that truth as a dead dog, but not a living belief.

Dean Smolla: Right.

Nico: That, you just don’t know how to defend it anymore.

Dean Smolla: Right.

Nico: I don’t really know how to … You know, I don’t have to go out and defend gravity every day. I don’t have to go out and defend the fact that the Earth is round every day. So, I probably am not gonna make the most compelling argument to a Flat Earther.

Dean Smolla: Right. And, you know, another thing. I guess it cousin of what you’ve just said is, the idea that really, you know, you see it first in American legal writing with Justice Brandeis’s opinion on Whitney v. California. I nickname it the kudzu theory or maybe the plant’s called kudzu. I just … One of our daughters had just graduated from college just did her whole English major report on that plant. But, kudzu is this plant. You see it particularly in the South where it just takes over an area and if you hack at it and cut it back, you know, in your yard, it comes back ten times stronger.

But, it’s the idea that you actually make evil speech stronger by censoring it because you drive it underground, you make it a martyr, people rally to it, you generate more suspicion against government, and you haven’t made anything any better. You’ve made things more dangerous. And, that was one of Brandeis’s central theories in that case and I do find that to be absolutely convincing. I do think if you just ban the speech of the racists, you’re gonna have more racists.

Nico: So, I realize we’re coming up on 45 minutes here. Do you have time for two more quick questions?

Dean Smolla: Sure, absolutely.

Nico: So –

Dean Smolla: I’m in quarantine. I’ve got all the time in the world.

Nico: I know. It’s like “Groundhog Day” over here.

Dean Smolla: Yeah.

Nico: This is like the most exciting part of my day. It would be regardless of whether we were in quarantine, but you know what I mean. So, in 2018 we at FIRE surveyed 2,400 undergraduate students about free speech and the events in Charlottesville. We found that 67% of students remember reading or hearing news reports about the protests. What’s more, 35% of students said the event changed how they think about free speech and expression on campus.

Dean Smolla: Wow.

Nico: What do you see as the short-term and long-term implications for the First Amendment of the events that occurred in Charlottesville?

Dean Smolla: Well, I guess what I’d say is, that 35% should buy my book.

Nico: Well, 15% of them actually … Because we allowed for open-ended questions and then we did sort of like an aggregate analysis of those, we found that 15% of that 35% actually made their beliefs in free speech stronger as a result.

Dean Smolla: Uh-huh. Uh-huh.

Nico: But, you know, the majority were more apprehensive.

Dean Smolla: Yeah. Yeah. I mean, I do think that cultural moments like this impact our collective thinking. And, you know, I have not been in that group that I think FIRE – I think of FIRE as part of the group that, you know, says college students today don’t understand free speech. You notice in my book, I don’t say that. I say, well, they understand it, they just understand it differently. They don’t come from the marketplace orientation that I do. That doesn’t mean they’re not sensitive. But, I do think that that event was probably a significant formative event for a lot of that generation, the collage age generation in the United States.

It looked to a lot of folks that watched that as if this is where the First Amendment gets you and it’s not a good place for us to be. So, I think that’s a realistic assessment of the impact it had on a lot of people and, you know, I try in my book to not write that off as naïve or to not trivialize it, but to deeply engage it and still try to explain why at the end of the day I think you have to allow that speech, as hateful as it is, to have its venting.

Nico: So, the last question here, defamation. Now, a portion of your book discusses your representations of plaintiffs suing Rolling Stone for a story they published and subsequently retracted about an alleged gang rape of a woman at the University of Virginia fraternity. I mean, University of Virginia was at the center of a lot of controversies —

Dean Smolla: Yeah.

Nico: — there in the past couple of years, especially around 2016, 2017. The story was shoddily sourced and it severely harmed the lives of some of those within the fraternity and the administration at the University of Virginia and if ever there was a claim for defamation, this was probably it. You also represented plaintiffs in a lawsuit against a book publisher that published a book that taught people how to be a hitman or assassin. And, in this case there was someone who killed, I think it was … What was it? Two or three people?

Dean Smolla: Right. Three people.

Nico: Three people and used this book kind of as a tutorial.

Dean Smolla: Right.

Nico: Now, representing plaintiffs in defamation cases or in cases against publishers is often looked down upon by members of the First Amendment bar. I think some publishers and trade groups even require their lawyers or member to commit to not representing plaintiffs in these kind of lawsuits. So, what are your thoughts generally about this sort of thing and have you experienced criticism –

Dean Smolla: Oh, sure.

Nico: — from your colleagues for doing it? And, I think about Nat Hentoff, because you talk about Nat Hentoff –

Dean Smolla: Right.

Nico: — the famous civil libertarian, in your book who commended you for your representation.

Dean Smolla: Yeah, great civil libertarian and great jazz critic. One of the great jazz writers.

Nico: But, he also was a critic of defamation law generally.

Dean Smolla: Yeah, he was. He was. So, look, I have taken heat from a lot of my friends in the First Amendment bar for being a plaintiff lawyer. You know, I have a really cordial friendship with Floyd Abrams, is maybe the most famous First Amendment lawyer ever in American history and he and I have been friends for a long time and we’ve been on the same side of cases. We’ve written briefs together. But, we’ve been adversaries. He’s always a defense lawyer in defamation cases and I’ve been against him in defamation cases. And, I can go down the line of very well known First Amendment lawyers with whom I have been allied in many, many cases, but against in cases where I take plaintiff’s sides of cases. So –

Nico: And, you’re not alone. There’s also, I interviewed on the show, Martin Garbis, who also represents plaintiffs and –

Dean Smolla: Yeah. Yeah.

Nico: Yeah.

Dean Smolla: And, no, I’m not alone. And, when I took the hitman case, that’s the Rice v. Paladin case, a person who was also a friend, Adam Liptak, who now covers the U.S. Supreme Court for The New York Times, but in an earlier time in his career was an actual lawyer for The New York Times before he became a journalist. He called me a traitor to the First Amendment, you know.

Nico: In print?

Dean Smolla: Yeah, in print.

Nico: Oh, wow.

Dean Smolla: And, I think, you know, I can take it. It’s no big deal. I’m used to that. Here’s my simple answer. I believe the rules are right and I play by the rules. So, in defamation cases, the actual malice standard is an appropriate way to protect free speech, but still create some opportunity for a person who is defamed to protect their reputation if they can meet that high standard.

Nico: So, you wouldn’t describe to –

Dean Smolla: And, when I take a defamation case involving a public figure, I have no illusions. I’m not trying to get the court to abandon the actual malice standard. I’m trying to get the court to play it straight and if I have the proof of recklessness, I think we did for example in the Rolling Stone case. I think it was an – I think that’s why the case settled. If we have proof of it, we win. If we don’t, we lose. And, I could pretty much go down the line in all of these cases that, where I’ve been on the plaintiff’s side and say, “I’m not attacking the rule, but as applied to these facts … ”

This sort of loops back to what you and I were talking about earlier in the current litigation going on in Charlottesville. If the facts are there to show that the standard has been met, whatever it may be in a particular First Amendment case, then there’s nothing wrong. In fact, it’s appropriate because free speech is always intention with other important values. With equality, with the protection of reputation, with protection of consumers. You know, it’s not an absolute and if you can meet the standard and someone has violated and crossed the line, I’m 100% comfortable with being a crusader for the person that was injured.

Nico: One of the challenges that we have at FIRE in talking about the law is that there is what the law is and there’s what you want the law to be.

Dean Smolla: Right.

Nico: And so, you wouldn’t then, based on kind of what you said reading through the lines, you wouldn’t then subscribe to Justice Clarence Thomas’s idea that we should reexamine New York Times v. Sullivan and the actual malice standard. You actually think that the standards that are in place right now are the best at balancing the competing interest in these cases.

Dean Smolla: Right. And so, when Justice Thomas wrote that, he was heavily, heavily criticized and I wrote an op-ed right after Justice Thomas’s opinion and I said, “Look, I don’t think we should abandon New York Times v. Sullivan.” He makes some valid points, but a lot of the points he makes … Which, I mean, one of his main points is that the case is ahistorical. It can’t be squared with what the framers of the First Amendment had in mind or those that adopted the Fourteenth Amendment had in mind and, of course, he’s right. But, you could say that about 99% of our free speech law. Almost all of it’s ahistorical.

I’m sure the framers wouldn’t have expected a lot of the free speech documents we have. But, let me make another point real quickly before we go, and that is, I do think that the way the landmark defamation cases were decided, and I mean the cases from New York Times v. Sullivan through the Gertz case, which is the case that said, “We also use the actual malice standard for public figures.” I do think that in the decades since those landmark decisions, some courts have drifted in their application of those cases and are providing more free speech protection than those cases contemplated.

And some of it, I think more people are classified as public figures than should be. I think that often things are treated as opinion maybe too promiscuously. They’re really facts. The courts are maybe too quick to call them opinion. And, the proof that you have to have to show actual malice is sometimes I think more demanding than those cases contemplated. These are quarrels on the edges. This is inside baseball type quarrel. So, I think Justice Thomas may have some – I kind of in a way would like the U.S. Supreme Court to take another big defamation case. It’s been a long time since they have and some of these issues are festering and they need some resolution.

And, Justice Alito made the point too recently in a … When the Supreme Court denied review in a case called Man, which involved the fact versus opinion distinction and who gets to decide that, juries or judges? I’m guessing there will be a big defamation case that the Supreme Court takes sometime in the next year or two or three and it may kind of go back and I don’t think it’ll change any of the subsonate of doctrines, but I think it may fine tune them a bit and recalibrate them a bit, maybe in one direction, maybe the other, I don’t know. But, I think there might be some interest in doing that.

Nico: I’m actually surprised they didn’t take that Man case. I mean, there was a lot of, it seemed like, public outcry.

Dean Smolla: There was an army of [inaudible] [00:58:51]. Yeah. I kind of thought they might, but they didn’t. But, I hope they take one soon and I hope I get to argue it.

Nico: Is the Virginia v. Black case your only case in front of the court?

Dean Smolla: Yeah, it is. And, of the 20 or so cases that I’ve ben involved in in which there were serious cert petitions, it’s not the one I would have thought the Supreme Court would take. But, it is the one that they took, so.

Nico: Yeah. Because they had the RAV case, which seemed pretty similar to me. You know, it’s distinguishable in certain significant ways as well, but it wasn’t too far before the –

Dean Smolla: Right. Only 10 years before. Yeah.

Nico: But, the court sometimes takes free speech cases back-to-back like, you know, flag burning. I think there was a couple of flag burning cases there —

Dean Smolla: Right.

Nico: — in short order.

Dean Smolla: Right.

Nico: Well, I could keep talking to you all day. There’s plenty to talk about.

Dean Smolla: We’ll do it again sometime. I’d be delighted.

Nico: Yeah. Dean Smolla, I really appreciate you coming on this show and I urge people to check out your book.

Dean Smolla: Thank you.

Nico: That was Rodney Smolla. He is dean and professor of law at the Delaware law school of Widener University and the author of the excellent new book, Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate. The book is now available and can be found wherever fine books are sold. This podcast is hosted, produced and recorded by me, Nico Perrino, and edited by Erin Reese.

You can learn more about So to Speak by following us on Twitter at Twitter.com/freespeechtalk or liking us on Facebook at Facebook.com/sotospeekpodcast. You can also email us feedback at sotospeak@thefire.org. If you enjoyed this episode, please consider leaving us a review wherever you get your podcasts, Apple Podcasts, Google Play, Stitcher. Reviews help us attract new listeners to the show. And, until next time, thanks again for listening.