Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate

Smolla (Dean, Delaware Law Sch.–Widener Univ.) dissects the deadly 2017 Unite the Right rally in Charlottesville, VA, within the broader context of social unrest in the United States within the past decade. The author demonstrates how the rally’s alt-right organizers intended for their protest of the relocation of Confederate monuments to spark physical altercations with counter protesters—and it did, as an attacker purposely drove into the crowd, murdering Heather Heyer. As an advocate of the “marketplace theory” of free speech that has dominated American jurisprudence since the 1960s, Smolla argued in Virginia v. Black that his client, a member of the Ku Klux Klan, had a constitutional right to burn a cross. Charlottesville, he candidly admits, tests how far political expression may extend when it intentionally incites lawless, violent action—speech the Supreme Court holds is not protected by the First Amendment—and he concludes that protecting free speech necessarily must coincide with maintaining civil order.