On Friday morning, the country, still reeling from the deaths of Alton Sterling and Philando Castile, woke up to a lot of unanswered questions. Why, after a night of peaceful demonstrations in one of the nation’s largest, most diverse cities — so peaceful that protesters offered to buy coffee for officers, and police reminded the protesters to stay hydrated — did a sniper unexpectedly open fire, killing five officers and injuring seven others, along with two civilians? Aside from the horror for the people gathered in Dallas, what could it mean for other protests gearing up across America? Could it be used to justify a degrading of our First Amendment rights? What stops the government from canceling subsequent protests if it feels its own officers are at risk?
Rolling Stone recently spoke with Geoffrey Stone, a professor at the University of Chicago Law School and a constitutional expert, to ask if our fears were founded.
Could an attack like this, targeting the police who were there to protect protesters, mean no more protests for a while?
No, no, no. There’s a very strong principle in First Amendment jurisprudence, called the heckler’s veto, which is critical. A classic example would be Skokie [in Illinois, in 1977]. The Nazis wanted to march in Skokie, and there were people who said, “We’re gonna have to kill them.” What the courts have figured out, and have adhered to in a very strong way, is that we cannot allow people who threaten violence to effectively conscript the government to prohibit the speech because they’re afraid of the violence. Because if you did that, then you just encourage people to engage in violence, or threaten violence, even though they’re never going to actually do it.
So what the court has said, basically, is that you cannot have a heckler’s veto, and short of emergency situations — clear and present danger of immediate harm — the responsibility of the police and the government is to protect the protesters and to protect the right to free speech, not to shut down speech because of the purported danger. The reason for that is otherwise you’ll never have any free speech.
That’s a key development in First Amendment law. The Supreme Court first addressed this question explicitly in 1951, in a case called Feiner v. New York, in which the Court upheld the conviction of a speaker because his speech led to members of the audience threatening violence. The police officers told him to stop speaking, he refused and they arrested him. He was prosecuted for refusing to obey the police order, and the Supreme Court upheld it. But that’s now 65 years ago, that’s the last time that’s happened.
In the years since then, particularly during the Civil Rights movement, this really came to a head. When you had Civil Rights demonstrations in the South, you routinely had whites who were basically threatening to shoot the protesters, and to attack the protesters. And the local police — who didn’t want the protests in the first place — told the protesters, “Knock it off, or you go to jail.” This was in Alabama and Mississippi and so on. And so the Supreme Court said, “You can’t do that. Your responsibility is absolutely to protect the speakers, and that means putting in a lot more police protection.” You could only stop the speech as an absolute last resort. So the fact that this happened may mean that the government may now have to put more police protection up in various situations. But part of the risks you take in a free society is that somebody’s going to shoot you. Not because of the Second Amendment, but because otherwise you just allow people to make empty threats, and therefore silence people. So that’s a key way of understanding this problem: We do not allow the threat of violence to shut down speech, except in the most dire and immediate circumstances. So if you have somebody firing a gun, you can tell protesters to disperse. At that moment, you can do that. But just because you think it might possibly happen, you can’t prohibit speech.
You wrote a few years ago about how the Second Amendment isn’t absolute, in the same way that the First Amendment isn’t absolute. At the Dallas protest, there were many individuals exercising their legal right in Texas to openly carry guns — even semiautomatic rifles. Do you think that the Second Amendment guarantees a right to carry a gun in an open protest like that?
No. I think that the Supreme Court’s position in Heller misconstrued the Second Amendment. I agree with the four dissenters in the case, that the Second Amendment was designed to serve a very specific purpose in a world in which there were no police. When the Second Amendment was adopted, there were no police departments. That didn’t come until well into the 19th Century. The idea of having a well-regulated militia was to enable individuals to be called when there was a need for, essentially, what we would today think of as police. And we wanted them to be able to have the weapons they need to be effective.
The whole point of the Second Amendment, which is made clear by its language, was to make sure that it was possible to have a militia, because there was no professional police department. And the dissenters, I think correctly, argued — as the Court held in the 1930s — that the Second Amendment did not protect the right of people to own guns just for their own sake. It was only to own guns if they were part of the militia, and nowadays we don’t have a militia of that sort, because we have professional police officers. The majority interpreted it differently, and basically ignored the first several words of the amendment. So my view is that the Second Amendment basically has very little to do with any of this, though that’s not what the Court’s held.
But the question then is, to what extent can you regulate guns, consistent with the Second Amendment? My guess is the Court — even the Court that decided Heller — would hold that the state can regulate the possession of guns in certain circumstances. I don’t think they could say there was a Second Amendment right to carry a gun into a classroom. I think they would say a public university can ban guns in classrooms, or ban guns in protests or demonstrations. I think they would say that. They were not saying that all regulations of guns are impermissible. They were saying that you can’t ban guns and private ownership. But the point is, the courts never actually come back to any of those questions. So we don’t actually know what that set of justices would have done with these kinds of hypotheticals. Presumably, for example, they would have said felons could be denied the right to own guns. Certainly they would have said prisoners can be denied the right to own guns. And so, the basic notion is that the right of the individual to own guns does not mean they have a right to bring it to protests, to bring it into the White House, to bring it into Congress. Even those justices would say those rules are OK.
This interview has been edited for length and clarity.