After Charlottesville, the Limits of Free Speech

Summary

The New Yorker Radio Hour

Episode: After Charlottesville, the Limits of Free Speech

Date: September 8, 2017
Host: David Remnick
Guests: Mark Bray, Melissa Murray, Dahlia Lithwick

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Episode Overview

This episode of The New Yorker Radio Hour, hosted by David Remnick, explores the aftermath of the violent white supremacist rally in Charlottesville, Virginia, and examines the fraught boundaries between free speech, protest, and violence in America. Guests include historian Mark Bray (author of The Anti-Fascist Handbook), Berkeley law professor Melissa Murray, and legal analyst Dahlia Lithwick, each offering a distinct perspective on the tensions between the First and Second Amendments, campus free speech, and the modern legacy of protest movements.

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Key Discussion Points & Insights

1. Understanding Antifa and the Varieties of Anti-Fascist Protest

[00:28–11:25] Guest: Mark Bray (interviewed by David Remnick)

• Origins & Tactics of Antifa:

  • Antifa is a collection of radical left groups, not mainstream liberals, who view direct action as essential to combating fascism—not just debate or state mechanisms.

    "What we're talking about here is a specific pan radical left politics that is not only about combating fascism, but also has an essentially socialist message." — Mark Bray [02:53]

  • Most Antifa activity is nonviolent: tracking and exposing white supremacists, organizing boycotts, stopping events before they happen.

    "A lot of this is essentially thankless drudgery of monitoring white supremacist and neo-Nazi groups... making phone calls or organizing boycotts... alerting communities." — Mark Bray [01:34]

  • Physical confrontation is considered a last resort when other methods fail.

• Efficacy and Ethics of Violence vs. Nonviolence:

  • Debate over whether violence undermines causes or, in some historical contexts, is necessary when state mechanisms fail (citing 1930s Germany and Cable Street in London, 1936).
  • Reminder that nonviolence and violence have often co-existed in movements; looming threats make nonviolent proposals more palatable.

    "In just about every historical circumstance you have some manifestation of both tendencies going on at the same time." — Mark Bray [04:10]

  • "I'm not trying to argue that any tactic is always the best tactic... sometimes when you get attacked by armed neo-Nazis, it's legitimate to defend yourself." — Mark Bray [10:23]

• Trump and Fascistic Qualities:

  • Bray does not call the Trump presidency fully fascist but points to "fascistic qualities" such as a cult of personality and xenophobia.

    "No, not at all. But I would say that Trump has fascistic qualities. His cult of personality, glorification of violence..." — Mark Bray [05:56]

• Free Speech and Self-Defense:

  • Historical examples (Skokie, Cable Street): Sometimes marginalized communities can’t count on majority populations or liberal values alone.

    "You can't always rely on the majority population to defend your interests if you're a minority sometimes." — Mark Bray [08:33]

  • The ethical legitimacy of self-defense against targeted violence.

• Campus Speech:

  • Bray would protest speakers like Steve Bannon but stops short of supporting violence at speeches; context matters.

    "Personally, I might write an op ed criticizing it. I would protest it. But personally, that's probably all I would do." — Mark Bray [10:53]

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2. Free Speech, Campus Unrest, and Student Sensitivities

[12:28–23:09] Guest: Melissa Murray (interviewed by David Remnick)

• First-Hand Berkeley Account:

  • Describes the chaos during the Milo Yiannopoulos event: helicopters, violence, fear, and the presence of external protesters.

    “As soon as I drove out of the garage, you could hear helicopters overhead... People are slamming on the hood of the car and... throwing bottles.” — Melissa Murray [12:28]

• Are Campuses Hostile to Conservative Speech?

  • While some students and faculty resist opposing views, the narrative of “snowflake” hypersensitivity is overstated. Berkeley routinely hosts conservative speakers.

    "This idea that Berkeley is somehow hostile or resistant to viewpoints that don't cohere with some so-called Berkeley orthodoxy is patently false." — Melissa Murray [14:52]

• Administrative Dilemma:

  • Berkeley, birthplace of the free speech movement, is obligated to defend speech, even if offensive, so long as it doesn’t escalate into violence.

    "If you say that you are for free speech, you have to be for free speech, and that includes even speech that you might find offensive." — Melissa Murray [16:01]

• Students' Shifting Attitudes:

  • Younger students may conflate disagreement with discrimination, making classroom debates on issues like affirmative action feel personal.

    “To express opposition to affirmative action was conflated with expressing opposition to her. …But as a professor, I think it’s really important that a student be able to say, you know what? I have questions about this. I don’t agree with that position. I think this is a legitimate position to have.” — Melissa Murray [19:16]

  • The personal legacy of race at institutions like UVA and the emotional impact of racist incidents.

• Connecting Berkeley and Charlottesville:

  • Both serve as flashpoints for a larger, unresolved culture war over American history, discrimination, and the boundaries of speech and protest.

    "Yet I think they're united as being flashpoints for a kind of culture war... We as a country have not really done the hard work of reconciling our past." — Melissa Murray [21:30]

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3. The Limits of Free Speech When Guns Are Involved (Charlottesville’s Legal and Social Legacy)

[24:48–39:09] Guest: Dahlia Lithwick (interviewed by David Remnick)

• Charlottesville and Monument Politics:

  • Local debates over Confederate statues escalated when white nationalists planned mass rallies.

    "The city council voted that they were to come down and a judge… enjoined that for six months." — Dahlia Lithwick [25:14]

• The ACLU’s Role and Legal Backlash:

  • The ACLU (and Rutherford Institute) sided with white nationalist organizers on First Amendment grounds, viewing the city’s effort to relocate the rally as viewpoint discrimination.

    “You are persecuting this group based on their ideas and their speech. That's classic First Amendment persecution.” — Dahlia Lithwick [26:26]

  • Judicial Dilemma: Was this a pure speech issue? Initially, yes, but open carry dramatically altered the calculus.

    "I think that he was wrong only insofar as he... did not think about the fact that these folks had guns." — Dahlia Lithwick [28:15]

• Guns as Speech and Intimidation:

  • Open carrying weapons at protests blurs lines between protected speech and intimidation.

    "There are folks open carrying in a performative way... Until we can figure out where the line is between what looks like intimidation and threats and what is simple protected second amendment activity... all these speech problems get swallowed into that black hole." — Dahlia Lithwick [31:52]

  • The presence of firearms can suppress counter-protesters’ willingness or ability to exercise their own speech.

• Institutional Responsibility and Historic Legacies:

  • The University of Virginia's deep historical ties to Confederate thought, and its struggle to anticipate and prevent violence.

    "You cannot ask any university... to subordinate its founding, its legacy, and to say, I want you to hate everything about what you were in order to join this century." — Dahlia Lithwick [34:40]

  • The university and city are both coping with trauma and institutional failures in responding to hate-fueled violence.

• Aftermath for the ACLU and Policy Changes:

  • The ACLU, deeply criticized post-Charlottesville, quickly revised its stance, now less willing to defend events where violence or intimidation is a real threat.

    "Within a day, the ACLU comes out and says, okay, now we're not for that speech... now we will be much more careful about not protecting what looks to be violent threats." — Dahlia Lithwick [35:48]

• National Lessons:

  • Local governments and universities must anticipate violence and clarify the distinction between speech and intimidation, especially regarding the intersection of First and Second Amendment rights.

    "We have a really profound problem with guns... There has been a strain of we can just stand here open, carrying with our semiautomatics, and it's just speech." — Dahlia Lithwick [36:41]

• View on Campus Speech Battles:

  • Lithwick sees the Berkeley situation as fundamentally different, defending the idea that more speech—not censorship—is the best remedy.

    "I'm going to continue to say on this, I am a free speech purist, that the cure for bad speech is more speech." — Dahlia Lithwick [38:43]

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Notable Quotes & Memorable Moments

• Mark Bray [01:34]: "A lot of this is essentially thankless drudgery of monitoring white supremacist and neo-Nazi groups... trying to contact employers... alerting communities that may be under attack."
• Mark Bray [08:33]: "You can't always rely on the majority population to defend your interests if you're a minority sometimes."
• Melissa Murray [12:28]: "One thing they don't tell you when you sign up to be the interim dean is like... you’ve got to make sure everyone's good to go before you leave the building in a situation like that."
• Melissa Murray [19:16]: "There was a way in which it was deeply personal to her, and to express opposition to affirmative action was conflated with expressing opposition to her."
• Dahlia Lithwick [28:49]: "When the police stand down... many clergy leaders... were telling me when guys came at me, you know, with clubs and with guns, antifa saved me."
• Dahlia Lithwick [31:52]: "Until we can figure out where the line is between what looks like intimidation and threats and what is simple protected second amendment activity, we can sort of say all these speech problems get swallowed into that black hole."
• Dahlia Lithwick [38:43]: "The cure for bad speech is more speech... shutting down speeches and speakers doesn’t make their ideas go away."

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Timestamps for Key Segments

• [00:28–11:25] Mark Bray on Antifa, protest tactics, history, and free speech
• [12:28–23:09] Melissa Murray on Berkeley protests, campus speech culture, student attitudes, and parallels with Charlottesville
• [24:48–39:09] Dahlia Lithwick on Charlottesville’s legal battles, the role of guns, ACLU policy shifts, university legacies, and reflections on moving forward

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Conclusion

This episode thoughtfully unpacks the intricate intersections of free speech, violence, race, history, and the law following Charlottesville. It achieves a nuanced balance—amplifying the voices of scholars and witnesses who wrestle with both the value and the risks of radical protest, the ambiguities between speech and intimidation, and the responsibilities of institutions in a polarized era.

Transcript

[Dahlia Lithwick]

Floor 38.

[David Remnick]

They didn't break that, but they have pretty good access to those people.

[Mark Bray]

Her image subconsciously mocks that lineage.

[David Remnick]

So that's happening. Okay.

[Melissa Murray]

It seems like an incredible story here on many fronts.

[New Yorker Radio Hour Announcer]

From one World Trade center in Manhattan, this is the New Yorker Radio Hour, a co production of WNYC Studios and the New Yorker.

[David Remnick]

Welcome to the New Yorker Radio Hour. I'm David Remnick. I think it's pretty fair to say that not many of us had heard much about Antifa before the protests in Charlottesville, or it certainly wasn't a household name by any stretch. Antifa, which derives from anti fascist, is a small faction of leftists who are willing to use violence when necessary to confront their opponents. They're the people that Trump was talking about when he referred to violence as on many sides, although at Charlottesville, only one side rammed a car into a crowd and killed someone. Still, the notion that violence can be legitimate, even for a good cause, has a lot of people on the left and on the right very upset. And Antifa has been accused of inciting violence in Berkeley and elsewhere. One of the best ways to get a handle on what the movement means is a new book by Mark Bray called the Anti Fascist Handbook. I spoke with Mark Bray last week. One point you make is that the vast majority of Antifa tactics are nonviolent. Can you explain what some of those tactics are?

[Mark Bray]

Certainly.

[David Remnick]

Really, we don't see them much.

[Mark Bray]

Right. Well, that's part of the issue, right, is you literally don't see them because a lot of these groups are very secretive about what they do. So certainly a lot of it is essentially thankless drudgery of monitoring white supremacist and neo Nazi groups on multiple media platforms, trying to figure out who their members are, where they're meeting, who they're working with, where they're trying to hold events, and in many cases, making phone calls or organizing boycotts against venues to try and stop them from hosting these people, trying to contact employers to let them know that their employees are arguing on the Internet that Hitler was right, alerting communities that may be under attack. So there is a variety that's done, and quite often there are events that are stopped or shut down before anyone even hears about it. And then you can see that the level of confrontation is, to some extent, a last resort when stopping these kinds of events hasn't succeeded. And so that's what sort of needs to be taken into account when we think about what anti fascism looks like as a whole.

[David Remnick]

So my understanding is that while there are many liberal groups and many liberal institutions in this country that have been anti fascist, anti racist, anti white supremacist, we're not talking about liberalism here. We're talking about an amalgam of groups that are something else. What are they?

[Mark Bray]

Right. So what you point to is very important. The term anti fascist, of course, was used for essentially anyone who opposed fascism during World War II. What we're talking about here is a specific pan radical left politics that is not only about combating fascism, but also has an essentially socialist message. And it has both a revolutionary analysis and a historical analysis which thinks that some of these mechanisms, whether it be debate, the police, the state, failed in the interwar period to consistently stop the fascist advance, at times even aided the fascist advance. And that's why they argue that direct action is the best method to counteract it.

[David Remnick]

Well, there's direct action and there's direct action. Right. There's civil protests of a kind that we saw in the civil rights movement and in the anti war movement. And then there are violent protests and a lack of order that we've seen at other times. And research shows us that violent protests, violent riots and uprisings often flip people to the other side. So that in 1968, when you had a lot of violence in the street, you saw Richard Nixon win, not his democratic opponent. Now, radicals may think that there's really no difference between Richard Nixon and Hubert Humphrey, but the world may think otherwise. What's your view on that?

[Mark Bray]

Sure. So you're referring to this sort of research around strategic nonviolence, and a number of scholars have debated the evidence to show whether nonviolence and violence works. I think that the first thing to say is that it's often hard to isolate the effectiveness of either strategy, because in just about every historical circumstance you have some manifestation of both tendencies going on at the same time. So, you know, in terms of the 60s, obviously nonviolence is very powerful and very successful. But you also have the looming threat of what happens if these nonviolent protests are not listened to and the methods and the solutions to injustice that they propose are not put into effect. So the threat of a looming race war made certain nonviolent proposals seem more legitimate than they might have seemed otherwise. I'm not sure in the case of fascism, when it comes to power, when it really doesn't respond to public opinion, when it clamps down upon it, if you can always count on purely nonviolent means to leverage that kind of public opinion.

[David Remnick]

Are you saying that the Nazis came to power because of a lack of will to crack heads in the streets.

[Mark Bray]

No, that's an oversimplification. What I'm saying is that had the Communist Party of Germany, had the Socialist Party of Germany considered Nazism to be a grave threat several years before it came to power, which it really did not consider to be a grave threat until several, maybe a year or two in. Because the slogan of the Communist Party when Hitler took power was first Hitler, then us. So they believe that when Hitler got into power, he would be a fad, he would do such a poor job in government that he would be a one trick pony and he'd be done quickly.

[David Remnick]

But hang on, Mark. Yeah, so let's bring it to the present tense. In your view, what is the nature of the Trump presidency? Is this a fascist presidency, in your view?

[Mark Bray]

No, no, not at all. But I would say that that Trump has fascistic qualities. His cult of personality, glorification of violence, his sort of protectionist opposition to an absolutely free market grounded in sort of an economic and really a subtly racialized nationalism, his xenophobia and so forth. Right. And so certainly his connection to the alt right, the way that he's pandered to a certain kind of white nationalist sentiment, those are causes for concern.

[David Remnick]

Now, I realize the antifa movement is, has other tactics besides anything violent, but the fact is that we have seen things go to violence in various places, including Berkeley. If you have an arsonist in the White House, why hand them the matches? Why hand them the PR victory?

[Mark Bray]

Good question. Well, part of it is to understand that most anti fascists are revolutionaries and are not specifically concerned about who's in the White House and are as a whole, not necessarily super concerned, concerned with what you think about them. But I can tell you why I agree with much of what they say. And you and your listeners can take it for what it is. Certainly, I think most people would agree that there came a point. We can debate when that point was, but there came a point at which self defense against neo Nazis and fascists was legitimate historically. And we can see today in Europe and parts of the United States that there are populations who are regularly threatened and attacked by white supremacists, by police who are sympathetic to them. And the legitimacy of self defense, even in many cases very legal self defense, to me seems like an ethical response to that. And we can see that the way that fascists grow historically can be short circuited by concerted organizing. And why not do it? So if you look, for example, to the battle of Cable Street In London in 1936, there was a fascist march planned through the East End of London, which was a predominantly Jewish neighborhood. A lot of the Jewish population there participated with leftists to block the path of this fascist march. Certainly the majority of British society, which was of course predominantly non Jewish, thought that blocking this march was a disgrace and completely criticized this action in the media. So in the context of the 1930s, if the Jewish population of London wanted to sort of cater to the popular opinion, they probably would have just let the march pass through. But we can see in the case of Nazi Germany that you can't always rely on the majority population to defend your interests if you're a minority sometimes.

[David Remnick]

In Skokie, Illinois, some decades back, Nazis marched through the streets of a largely Jewish town.

[Mark Bray]

Yes.

[David Remnick]

And this was painful to so many people, myself included and countless other people. But there is a freedom of assembly, there's freedom of speech. Isn't that the higher value? It's certainly the higher liberal value.

[Mark Bray]

Certainly the higher liberal value. But the question is, when a certain population is facing a sort of lived illiberalism in the degree to which certain attacks upon them are eroding their actual lived experience of, you know, enjoying rights, when those kinds of values fall apart and you get a white supremacist movement that's targeting people and the majority population doesn't necessarily really care, what do you do about it? You know, so that's. It's sort of a variation. You can look at black nationalism as another example of certain kinds of political formations not trying to cater their politics to what the majority of white people are thinking because they don't necessarily share the same interest.

[David Remnick]

Do you consider him naive in this sense?

[Mark Bray]

No, not at all. I just think he has a different perspective. I mean, I'm not trying to convince everyone to agree with me. I'm just trying to articulate why this perspective is intelligible.

[David Remnick]

You know, to my mind, maybe the most dramatic anti white supremacist moment in American history, and there are many of them, occurred in Selma, 1965, led by John Lewis and others. And people met the dogs and electric cattle prods and violence of white supremacists and the police, it should be pointed out, by peaceful means, by civil disobedience. And there was a lot of blood and there was a lot of pain. And they won. And they won.

[Mark Bray]

Correct.

[David Remnick]

Do you think these tactics bring victory or does it bring more civil strife?

[Mark Bray]

I'm not trying to argue that any tactic is always the best tactic. I'm trying to argue that there are times when different tactics are better than others. And I'm not trying to tell anyone not to do it. I'm just saying that sometimes when you get attacked by armed neo Nazis, it's legitimate to defend yourself.

[David Remnick]

Let me ask you this, and I realize you're a scholar of this as well as, but somebody with some sympathies with this, as a citizen not only of the United States, but of Dartmouth. If Dartmouth invited Steve Bannon to speak or Ann Coulter, what would you do about it? Or not.

[Mark Bray]

Personally, I might write an op ed criticizing it. I would protest it. But personally, that's probably all I would do. If you're curious.

[David Remnick]

And for those who would do a lot more and try to do everything they could to prevent their speaking, how do you feel about them?

[Mark Bray]

I think it's contextual. Depends on what is done. I mean, certainly all politics depends on what's done, when, by whom. But I think the notion of using civil disobedience methods to stop a speech by Steve Bannon is a legitimate response to that. Sure.

[David Remnick]

Mark Bray, thank you very much.

[Mark Bray]

Thank you.

[David Remnick]

Mark Bray is a historian and visiting scholar at Dartmouth College. His book is called the Anti Fascist Handbook. After the violence at the University of Virginia last month, colleges around the country began to review applications for events ever more cautiously, trying to balance the obvious claim to free speech on campus against the possibilities of disruption and harm to students. Emotions are particularly high at the University of California, Berkeley, where a conservative student group called the Berkeley Patriot has invited Ann Coulter, Steve Bannon, and the alt right provocateur Milo Yiannopoulos to campus. It's an event they're calling Free Speech Week. Melissa Murray is a professor of law at Berkeley. She was on campus the last time Mila Yiannopoulos was there and was invited to speak. And protesters smashed windows and set fires. I asked her to describe what that event was like.

[Melissa Murray]

So I, at the time, was the interim dean of the law school. One thing they don't tell you when you sign up to be the interim dean is like. Like the captain of the ship. You've got to make sure everyone's good to go before you leave the building in a situation like that. And so I left the law school building. It was dark, it was winter. And as soon as I drove out of the garage, you could hear helicopters overhead. I mean, just really just like very loud helicopters everywhere. You'd been hearing helicopters all day long, but it just seemed like there were more of them. And it was incredibly loud. And I turned out of the garage onto the road and there are just people everywhere and trying to maneuver your car through these throngs of people chanting and screaming. At one point people are slamming on the hood of the car and you know, people are throwing bottles like there's glass. I mean, you just don't know what's going to happen. I mean, there were these moments where I just sort of wondered, I mean, am I going to get home in one piece tonight? And you know, later we learned that a lot of these protesters were sort of coming in from the outside. They weren't members of the Berkeley community.

[David Remnick]

Anti antifa or anti fascist group, I guess.

[Melissa Murray]

I mean, that's what they're called. They're definitely external to the university. And I think if things had sort of progressed the way that they appeared to have been going earlier in the day, it would have been students sort of expressing discontent, being angry, but not necessarily being violent. I mean, it really tipped over into a different level. The likes of which I hadn't seen. And I will say, if you've been at Berkeley for 12 years, you've seen a protest or two. This was like nothing I'd ever seen.

[David Remnick]

But you hear this all the time in the media now, not just from conservative commentators, that somehow on campus there's an atmosphere now that people to the left, snowflakes as they're called, are so sensitive that they don't want to hear from the likes of Ann Coulter or Larry Ingraham or whoever the speaker may be from the right or the Trump right or, or the alt right right.

[Melissa Murray]

I mean, I think that is warranted to some extent. There are certainly students and faculty members and staff and administrators who may be resistant to hearing ideas that are not consistent with their own. But I think for the most.

[David Remnick]

What's their rationale and do you buy it?

[Melissa Murray]

So some people have noted that especially with someone like Ann Coulter, who I think is really more of a provocateur than a scholar, that when she speaks she actually engages in a lot of epithets, making sort of broad claims about different groups that are not necessarily supported by evidence and are really sort of unkind and mean. And she's doing it purposely. I could see that. But I just want to be clear. I've been at Berkeley for 12 years and I've seen a number of speakers whose views do not cohere with my own who have come through. Charles Murray, came through the law schools, had a number of conservative legal thinkers through our Federalist society. So this idea that Berkeley is somehow hostile or Resistant to viewpoints that don't cohere with some so called Berkeley orthodoxy I think is patently false.

[David Remnick]

A conservative student group at Berkeley has invited Mila Yiannopoulos and Ann Coulter to speak on campus later this month. It's part of something called Free Speech Week. You're here at NYU for the term?

[Melissa Murray]

Yeah.

[David Remnick]

Is it a mistake for the school for Berkeley to host those speakers given what's happened in the past? The mayor of Berkeley thinks it is, yes.

[Melissa Murray]

I think the administration is really between a rock and a hard place. Berkeley has a very long and deep tradition of being receptive to free speech. It's the birthplace of the free speech movement. I don't really think the administration has a lot of wiggle room here. I mean, if you say that you are for free speech, you have to be for free speech, and that includes even speech that you might find offensive. I do think when, and these, you know, when free speech tips over into violence, I think that's a moment where the university administration can and should act. And I think it has acted in the past to protect students, to protect demonstrators, to ensure public safety, and to make sure that it doesn't spill over into the kind of things that we saw in February.

[David Remnick]

You're a law professor? I'm a journalist. I grew up with a certain sense of almost an absolute belief in freedom of speech. Maybe you the same. Do you find that your students are different in some ways when it comes to speech?

[Melissa Murray]

There have been a lot of times where I felt every inch of my 40 something years where like I'm turning into a stodgy old person.

[David Remnick]

How so? Because you're hearing what?

[Melissa Murray]

Well, so I will give you an anecdote from constitutional law, which I have taught at Berkeley for a number of years now. You know, I had a student a number of years ago come to me and just very, very upset. And you know, of course, you know, what's going on. So and so in class said something that I just, it was just so discriminatory and so offensive. And I was sort of racking my brain what was said in class. I mean, because I usually am pretty attuned to things going, the dynamics of the classroom and you know, if someone sort of says something that's really out of line, I will say something in class like, you know, that's not appropriate. Let's keep it evidence based. But this student was really angry because we had had a discussion about affirmative action which I thought had gone very well given how polarizing that issue can be. And I felt that students ventilated both sides of the argument and were very thoughtful about it. And she was so upset that a student had said that she did not believe affirmative action. And, you know, she was like, this was so discriminatory. And I was caught off guard because. And I felt myself sort of, you know, immediately becoming defensive. And I was like, wait a minute. I need you to tell me how it's discriminatory. She's like, well, it means that she doesn't think I belong here. It means that she thinks I don't belong. Like, you're personalizing something. All she said was that she doesn't agree with affirmative action as a policy. As a policy. Like, it doesn't have to be about you. Maybe it is, but she didn't personalize it. But where is this coming from? And then we're talking about this, and finally, I just kind of tip my hand, like, you may not agree with it, I may not agree with it, but it is a legitimate position that you can take, and it is entirely legitimate to raise it in class.

[David Remnick]

So how is a student like that getting to that conclusion? What has happened in her background in education? I don't doubt the sincerity of it. That she reaches the conclusion that that speech should not be permissible in a law school seminar, perhaps.

[Melissa Murray]

I mean, it does feel personal. There may be. And I think this is true. I mean, I, you know, have felt this as an African American woman, as a student. You know, when the day comes to discuss affirmative action and constitutional law, it's like, oh, my God, this is the day where I have to justify being here. Or, like, show that sense of dread a little bit. Yes. And, you know, so I think there was a way in which it was deeply personal to her, and to express opposition to affirmative action was conflated with expressing opposition to her. And, you know, I don't know if it was meant that way. And, you know, maybe it was like, she could have been right. But as a professor, I think it's really important that a student be able to say, you know what? I have questions about this. I don't agree with that position. I think this is a legitimate position to have. And, you know, if it's not, help me to understand why it's not.

[David Remnick]

We're living through a political moment that's charged in a million different ways. Racially is one way. And I wonder how you view what happened in Charlottesville in light of your own experience in Berkeley.

[Melissa Murray]

So I'm a graduate of the University of Virginia, so I spent four years Living in Charlottesville, the last year of which I lived on the lawn, which is the historic part of those grounds that are designed by Thomas.

[David Remnick]

These are the honored students are placed on the lawn.

[Melissa Murray]

Well, allegedly, these are the honored students who don't mind not having a bathroom for a whole year.

[David Remnick]

No, you're young.

[Melissa Murray]

So for me, the year I lived on the lawn, I think I was one of a handful of students of color who were living there. And I remember that year someone wrote the N word on my door, and it was such a jarring experience. And to see 20 years later, people marching with open flames on the lawn. What would it have been like for a student of color coming back to the university in two weeks and already feeling like, you know, a little bit discombobulated, being living in a place that was built by slaves. And, you know, we've only recently begun to acknowledge that contribution at the university to then be living there, having just witnessed this act.

[David Remnick]

Did the incidents at Berkeley and Charlottesville have anything in common?

[Melissa Murray]

Surely. Which is, you know, I think, interesting, because Berkeley and Charlottesville, having been in both places for a number of years, could not be more different in terms of their ethos. I think of Charlottesville and the universities being very pro institutions. I mean, in Charlottesville, you talk about Thomas Jefferson like he's gone out for ice and he'll be back any minute. At Berkeley, it's very anti institutionalist, iconoclastic in a way that Charlottesville is not. But yet I think they're united as being flashpoints for a kind of culture war that I think is coming to a head. And to me, it's a little frightening. You know, in Berkeley, on the one hand, it's this question of free speech and whether free speech can be used to cloak discrimination, bigotry. And, you know, in Charlottesville, it's this larger question of how do we repair a past that for many is deeply uncomfortable and laced with the vestiges of discrimination and segregation, and how do we reconcile with that? I think all of this is sort of uniting. Like we as a country have not really done the hard work of reconciling our past and, you know, we paper over it. But then there are these moments where the wounds come open again, and they're coming open in Berkeley, they're coming open in Charlottesville.

[David Remnick]

Melissa Murray is a professor of law at Berkeley. We've been talking about the First Amendment, but in a minute we'll take a look at what happens when. When it crosses paths with another popular amendment in the Constitution, the Second that's coming up on the New Yorker Radio Hour. Stick around, Sam. David remnick, I'm David Remnick, and welcome back to the New Yorker Radio Hour. Demonstrators at the Unite the Right rally in Charlottesville marched through the grounds of the University of Virginia carrying flaming torches, an echo of Nazi rallies in the past. And in a modern American touch, some carried assault rifles. Just how and why they were allowed to do that is one of the questions I put to Dahlia Lithwick, the legal analyst at Slate. She hosts Slate's Amicus podcast, and she lived in Charlottesville until just a few weeks ago. Dalia I just want to start with Charlottesville. Of course, you've lived there for a long time, 16 years.

[Dahlia Lithwick]

I had both my children there. All the years that I lived there, I commuted to DC to cover the Supreme Court, which is not an easy commute, but that's been my home for 16 years.

[David Remnick]

Dahlia, can you tell us a little bit about the run up to the Unite the Right rally that took place in August? Talk us through what happened in the city council offices and in the courts in all the days and weeks before this event that really shook the country.

[Dahlia Lithwick]

I think, David, it's useful to disaggregate a little bit the controversy about these Civil War monuments, right? We have a monument to Stonewall Jackson. We have a monument to Robert E. Lee. There's been a years long fight about taking those down, and that's been echoed all across the country with Confederate monuments. That was one piece of it. And then there was this other piece which is the alt right and the flaming torches and the Nazis. So the monuments was a story that progressed the way it's progressing in a lot of small Southern towns, which is that a high school student wrote a paper saying, I think these monuments stink and they should come down. The city council did this lengthy exploratory how are we going to do this? What should we do? But ultimately the city council voted that they were to come down and a judge in February enjoined that for six months and said, there's a statute that says we can't go pulling down Confederate monuments. I'm going to give this some more thought. That's where we were when Richard Spencer and the Charlottesville iteration of Richard Spencer, a gentleman by the name of Jason Kessler got involved and started to say we're going to mash our issues into this fight about pulling down the monuments.

[David Remnick]

How did Jason Kessler come to have a friend in the American Civil Liberties Union?

[Dahlia Lithwick]

So this turns in as classic American stories always do, into a huge court fight. And when it becomes manifest that this rally is going to be out of control, that a lot of people are coming, that this is an open carry state and that's important, some of them are going to be armed, the city council said, we're going to file a petition to move this thing to a satellite park that's much further away that the police can control. And this litigation goes right up until literally the day before the march. And at that point, the ACLU and the Rutherford Institute, which is another civil libertarian group in Charlottesville, both come together and say, you are persecuting this group based on their ideas and their speech. That's classic First Amendment persecution. And so they side with the Unite the Right folks and Jason Kessler and Richard Spencer and the neo Nazis to say to the judge, you can't allow this to be moved. And in fairness, and I think this gets lost in some of the reporting, the judge takes really careful notice of the fact that the counter protesters were not being moved. It looks as though the judge says the city is saying only the alt right and the Nazis have to go to this other site. And so that starts to look a lot like it's discrimination on the basis of viewpoint or ideology. And that's what makes the judge nervous.

[David Remnick]

So is this not a free speech issue, though? Why is this not a free speech issue? We've seen Nazis and Klan people and all kinds of groups over the years march in Skokie, Illinois and all manner of places. You don't have to like it, I despise it. But it is a free speech issue.

[Dahlia Lithwick]

No, it is. And that's what the judge who looked at this initially just assessed it as a classic speech question.

[David Remnick]

Was he wrong?

[Dahlia Lithwick]

No, I think that he was wrong only insofar as he either didn't take judicial notice or chose not to think about the fact that these folks had guns.

[David Remnick]

What was your experience of the August rally? Where were you? What did you see?

[Dahlia Lithwick]

We were home. We have two boys who are 12 and 14. They were getting very anxious. Everybody was kind of roiling with this feeling of, should I be on the streets? I want to be on the streets, but I don't know how I feel about antifa. I know how I feel about antifa, but I don't want to get pepper sprayed. And so everybody.

[David Remnick]

Antifa, the anti fascist group which made its presence known.

[Dahlia Lithwick]

Right. And we should talk about it because it turns out that when the police stand down In Charlottesville on August 12, an office awful lot of people, including the faith leaders. I talked to many, many clergy leaders. They were telling me when guys came at me, you know, with, with clubs and with guns, antifa saved me. And that's been a part of the story that I think we have to reckon with too.

[David Remnick]

Was the speech of counter protesters somehow suppressed that day?

[Dahlia Lithwick]

I think that that gets to the heart of your other question, which is why this isn't a classic speech problem. If you're in an open carry state and people are carrying semiautomatic weapons and they are literally thr as they were on the Friday night protest, throwing gasoline and then trying to light people on fire on the counter protesting side. And I think this is also really important, David. These were not local alt right folks. I mean, Jason Kessler was a local alt right.

[David Remnick]

Everybody was in import for the most part.

[Dahlia Lithwick]

People came. I think that what we were hearing was 80 some percent of the people who came came from not even out of town, but out of state.

[David Remnick]

On the legal side, a key question here has to be this is, is openly carrying a gun a form of protected speech? And should it be?

[Dahlia Lithwick]

Yeah, I mean, that's the nut question. And I think it's the question, you know, when you asked me how the judge handled moving the rally, I think the failure was to understand that once folks are open carrying, this is no longer just a speech question. Now we have speech doctrine. And you cited the Skokie case. In the 1970s, the Nazis tried to march in Skokie, Illinois. They deliberately picked neighborhoods where Holocaust survivors were aggregated. The Supreme Court blesses this march. Right. And as you said about the aclu, the ACLU is on the Nazi side. And it destroyed, I mean, Jewish support for the ACLU at that time was really, really eroded.

[David Remnick]

What do you think of the Skokie case?

[Dahlia Lithwick]

I think that the Skokie case was correctly decided because it was a pure speech case. I remember doing a panel about this a year ago with Ted Shaw, who used to be the NAACP Legal Defense Fund. And he said the problem when the government gets involved in speech is that they start going after the white supremacists. But you know, who gets totally screwed in the end of the day? It's always the black groups, it's always the minorities, it's always the workers. And so you have to analyze these.

[David Remnick]

How so?

[Dahlia Lithwick]

Because the same systemic imbalances that exist throughout the legal system also do not necessarily protect the speech of the people we want to protect. And I take that very, very seriously. I know it sounds deranged in a moment like now. But I think that the last thing any of us wants is the government, particularly this government, to be determining what is protest, who is antifa and what is speech. And I think if I had to make one point about the sort of first versus second amendment problem here, it's that we can't analyze them separately anymore, that there are folks open carrying in a performative way. Now they say, and we've had this all over Virginia and you see this.

[David Remnick]

On the streets of Charlotte.

[Dahlia Lithwick]

You see, I mean we had people open carrying in our Whole Foods, like in the banana section. We have our Kroger, you know, is an open carry kroger. During the 2016 election there were folks open carrying again as kind of performance art outside one of the candidates offices. And that candidate's staff were afraid to go home. So I think until we can figure out where the line is between what looks like intimidation and threats and what is simple protected second amendment activity, we can sort of say all these speech problems get swallowed into that black hole. And suddenly you have people coming to Charlottesville and they are explicitly saying, I mean the police knew that they were going to come with guns. They knew that they were.

[David Remnick]

But my understanding is that firearms are not allowed on the campus of the University of Virginia in Charlottesville. Did it seem to you that the university was insufficiently prepared for these armed protesters?

[Dahlia Lithwick]

So the university is this whole separate drama. On Friday night, this is the 11th, they decided to march on the UVA campus and they had the flaming torches, the tiki torches, right from the home furnishing section at Walmart.

[David Remnick]

That's where they came from.

[Dahlia Lithwick]

That's they were bringing the tiki torches, which you know is very, very Love boat, but not so Love Boat when you're a student on campus and you're trying to move in. Now there are huge factual questions about what the university knew and didn't know. And Theresa Sullivan, who has really had to answer for this in the weeks.

[David Remnick]

Since this, is the president of uva.

[Dahlia Lithwick]

She has taken the position, I think, not unreasonably, that the university was completely blindsided when it was hundreds of people and they had torches.

[David Remnick]

How could they not know?

[Dahlia Lithwick]

Well, so this is the factual question that is going to have to be unraveled. I think a lot of folks in town already knew that they were going to march on the UVA campus. And this also goes a little bit to this really interesting subset of this problem. You know, we talked about the fact this is a tiny little town, everybody knows everyone there's five people on the city council. But I think that the UVA town gown nexus between this college, which was. Right, the Harvard of the Confederacy. I mean, this was a university that is very much born out of Confederate intellectual. You know, this is Jefferson. This is the heart of what becomes the resistance in the Civil War. And to be blinkered about the history of UVA in this. And that's why I think it's an error to not look at the fact that Richard Spencer and Jason Kessler are UVA alums, that they are still, I think, skating some of this problematic.

[David Remnick]

But are you suggesting. Wait a minute. That the culture of the University of Virginia at this moment now has traces of this ideology either in its faculty or in its students?

[Dahlia Lithwick]

Certainly not in its faculty. Certainly not in its students. But I think the same failure to absolutely understand what Jefferson means to some people, what Robert E. Lee means to some people, what Stonewall Jackson means to some people, you cannot ask any university, I think, to subordinate its founding, its legacy, and to say, I want you to hate everything about what you were in order to join this century. And so I think that I don't want to, by any means, say that the university tacitly supports white supremacy. The university did, however, very overtly support astounding KKK and white supremacy activity in the 1920s and 30s.

[David Remnick]

The ACLU is going through its own drama. It ultimately changed its policy after the demonstration.

[Dahlia Lithwick]

And.

[David Remnick]

And that's a historic moment for a group that's 97 years old, isn't it?

[Dahlia Lithwick]

The ACLU got so much heat for being on the wrong side of Heather Hare's death, but were they on the.

[David Remnick]

Wrong side of Heather Hare's death?

[Dahlia Lithwick]

Well, that's what they were accused of. What you're saying is exactly the right question. And their answer is, we had nothing to do with inciting violence.

[David Remnick]

How were they not wrong?

[Dahlia Lithwick]

We were there for speech. I think that they were implicated in what became the legal chaos around the march. I think that they had such acute blowbacks and membership saying, oh, no, no, no, no, this isn't speech. This is violence. What you are now endorsing is intimidation. It is racial hatred, and this transcends your core mission. And within a day, the ACLU comes out and says, okay, now we're not for that speech. You know, we will now be much more careful about not protecting what looks to be violent threats. And so they received exactly the kind of blowback they got after the Skokie case. But this time they changed their position.

[David Remnick]

So what needs to change? In our legal system to prevent this kind of violent confrontation in the future.

[Dahlia Lithwick]

Well.

[David Remnick]

Or is it just lousy policing and bad local politics?

[Dahlia Lithwick]

I think the question post Charlottesville has been, is this the beginning of something or was this a one off? And certainly Boston suggests, and even what we saw in Northern California suggests, that at least large metropolitan police departments are now going to be very quick to police this in a different fashion. They're going to set. There's going to be a huge buffer. You know, there are things we can do, but I think we have a really profound problem with guns. And I think certainly in open carry jurisdictions where Second Amendment folks are taking the position that it is actually a First Amendment right to carry a gun because you are communicating something. There has been a strain of we can just stand here open, carrying with our semiautomatics, and it's just speech. It's just a declaration of our deep fondness for guns.

[David Remnick]

So tell me about Charlottesville moving forward. I know you've moved to New York and welcome.

[Dahlia Lithwick]

Thank you.

[David Remnick]

But what happens to your city of Charlottesville?

[Dahlia Lithwick]

So Charlottesville is first and foremost still roiled by this, still grieving acutely. My friends who I'm talking to and texting with really are still quite fearful. Richard Spencer and Jason Kessler and all the. The good folks who joined us in August say they're coming back. This was a huge success for them. And City council's trying to figure out what went wrong. And as I said, the university is trying to figure out what went wrong. I think a lot of people like me who didn't go out on the streets that day are gonna say, maybe I have to go out on the streets the next time.

[David Remnick]

So what does a place like Berkeley have to learn from something like this? A student group has reportedly invited Ann Coulter and Milo Yiannopoulos to speak on campus. The last time Milo was there, violent counter protesters set fires and destroyed buildings or damaged buildings, and the university was forced to cancel the speech. How do you view the Berkeley phenomenon?

[Dahlia Lithwick]

I think that it's a totally different and inapposite set of problems, and I think we have to kind of analyze them differently. I'm going to continue to say on this, I am a free speech purist, that the cure for bad speech is more speech. You know, as Justice Brandeis said, sunlight is the best disinfectant, and shutting down speeches and speakers doesn't make their ideas go away.

[David Remnick]

Dahlia Lithwick, thank you.

[Dahlia Lithwick]

Thank you for having me.

[David Remnick]

Dahlia Lithwick is a senior editor and legal analyst at Slate. And that's it for the New Yorker Radio Hour this week. I'm David Remnick. Thanks for joining me. Next week will be our 100th episode. 100 who knew? Talk to you then.

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