Everyone knows you "cannot shout fire in a crowded movie theatre." The statement by Supreme Court Justice Oliver Wendell Holmes in US vs. Schenck in 1893 actually was "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." However, a few years ago Trevor Timm in The Atlantic wrote
Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).
Well, obviously, because in Charlottesville, The Washington Post notes,
At one point, police appeared to retreat and then watch the beatings before eventually moving in to end the free-for-all, make arrests and tend to the injured. Gov. Terry McAuliffe (D) declared a state of emergency about 11 a.m. and activated the Virginia National Guard.
“The whole point is to have overwhelming force so that people don’t get the idea they can do these kinds of things and get away with it,” said Charles H. Ramsey, who headed both the District and Philadelphia police departments.
But overwhelming force depends not only upon the number of people but also how well armed they are compared to their adversary, those who believe "they can do these kinds of things and get away with it."
Many people have criticized the police for their passivity on Saturday in Charlottesville. The New York Times reports that one United Church of Christ minister complained "There was no police presence. We were watching people punch each other; people were bleeding all the while police were inside of barricades at the park, watching. It was essentially just brawling on the street and community members trying to protect each other.” One state legislator said the police might have been "waiting for a more effective time to get people out" of the park.
Fortunately, the Governor evidently understood as he "fiercely defended the police in an impromptu sidewalk interview, noting that many of the demonstrators were armed, and saying the officers had done 'great work' in a 'very delicate situation.'”
The problem wasn't the police. It was the Second Amendment and more specifically the right of "open carry."."
As the map below from Wikipedia displays, twenty-four states have open carry laws as permissive as does Virginia. (Only four states and the District of Columbia effectively prohibit the practice. If you flunked geography, check out Wikipedia's chart, and be prepared to be shocked at two.) If the Charlottesville police had responded as aggressively as many individuals claim they could have, there would have been much more blood in the streets, which would not have pleased any UCC minister.
The police could have prevented most of the violence in Charlottesville. But they could not have done so without a show of force that would have left the kind of carnage Donald Trump sees in America generally. They were facing two invisible enemies, one of them the national fetish with guns, the other the myth that the Second Amendment protects an individual right to possess firearms. If we don't see our way clearly through this, the next time we won't even need white supremacists to shout about the fire.