House Democratic Leader Nancy Pelosi has always displayed a rather fluid view of constitutional rights (though in fairness, that is not a major distinction from other politicians). However, this week Pelosi appeared to embrace content based discrimination in the area of free speech. Pelosi is demanding that the National Park Service reconsider a permit for what she called a “white supremacist rally” in San Francisco. In light of the violence in Charlottesville, Pelosi insists that “The NPS should reevaluate its decision and its capacity to protect the public during such a toxic rally.” The problem is leaving it to the government to declare what groups are toxic from Pelosi’s list of constructive banned viewpoints. I felt ill watching the torch march of neo-Nazis in Charlottesville as white supremacists yelled disgusting anti-Semitic and racist chants. It reminded me of the Nazi rallies before World War II — before my father and so many others went off to fight fascism. However, despite that revulsion, I remain committed to the right of everyone to speak and protest regardless of the content of their views.
The San Francisco Examiner reports that the rally by the pro-Trump group Patriot Prayer is slated for Aug. 26 at San Francisco’s Crissy Field. The Golden Gate National Recreation Area includes parkland available to groups. Patriot Prayer obtained proper permits.
Pelosi is suggesting that the group should be denied a permit affordable to other groups based on their beliefs. That is the definition of government regulation of speech. Regardless of whether counter-demonstrators are drawn to the event, the group has a right to associate and to demonstrate. Anyone who engages in unlawful conduct on either side is subject to arrest.
As is so often case, Pelosi couched her remarks in an expressed fealty to free speech: “San Francisco takes great pride in being a city of peace which cherishes free speech and the right to public dissent.” Then comes that predictable “but” to not just qualify but nullify first amendment protections: “However, the National Park Service’s decision to permit a white supremacist rally at Crissy Field raises grave and ongoing concerns about public safety.” What does that mean? Does “concerns” over what might happen now justify a denial of the right to speak in public forums?
If that were the measure, no one could obtain a permit if they were widely unpopular. This approach has virtually banned some conservative speakers from colleges (as we discussed with regard to schools like DePaul in Chicago). Pelosi’s position would allow the government to bar groups on the basis that they present a public danger due to the expectation of counter-protesters. That would be a serious blow to free speech in this country. As I discuss in my recent Hill column, the first amendment generally views both sides as exercising free speech regardless of the content of their views. For that reason, the courts have largely rejected content-based government action as opposed to prosecution for specific criminal acts like property damage.