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Profs and Pints presents: “Force vs. the First Amendment,” with Mary McCord, visiting professor at Georgetown Law’s Institute for Constitutional Advocacy and Protection.
In recent years far-right extremist groups have taken to the streets to advocate for white nationalism. Far more than free speech has occurred at their marches and rallies in places like Berkeley, Calif.; Portland, Ore., and Charlottesville, Va. Espousing a “provoke and invoke” strategy, the groups have used their intimidating words and armed, organized displays of force to provoke counter-protesters into striking the first blow. They’ve then responded violently, invoking self-defense.
Self-professed militia groups frequently have provided “security” at these events. Armed with AR-15s, they have taken it upon themselves to determine whether, and when. lethal force may be used.
Is this violent activity protected by the First Amendment? Does the Second Amendment protect the open carrying of firearms as part of an unauthorized militia? Is private paramilitary activity allowed under federal or state law?
Professor McCord led a successful lawsuit that pushed Charlottesville, Va., to take a novel approach to dealing with more than 20 individuals and groups that had participated in the Unite the Right rally in August 2017. It barred those returning to the city in groups of two or more from acting in concert while armed with any type of weapon, including shields. The court orders resulting from the lawsuit covered any protest, rally, demonstration, or march. She’ll talk about how nearly every state has constitutional provisions and laws that bar paramilitary activity, and she’ll describe how enforcement of those laws is consistent with the First and Second Amendments.
