The Most Shortsighted Attack on Free Speech in Modern U.S. History

By Conor Friedersdorf

Wednesday, August 23, 2017

When free-speech advocates point out that the First Amendment protects even hate speech, as the attorney Ken White recently observed, they are often met with extreme hypotheticals. For example: “So, the day that Nazis march in the streets, armed, carrying the swastika flag, Sieg-Heiling, calling out abuse of Jews and blacks, some of their number assaulting and even killing people, you'll still defend their right to speak?"

In Charlottesville, he declared, something like that scenario came to pass: “Literal Nazis marched the streets of an American city, calling out Jews and blacks and gays, wielding everything from torches to clubs and shields to rifles, offering Nazi slogans and Nazi salutes. Some of their number attacked counter-protesters, and one of them murdered a counter-protester and attempted to murder many others. This is the ‘what if’ and ‘how far’ that critics of vigorous free speech policies pose to us as a society.”

Nevertheless, he wrote, his civil-libertarian views were unchanged, his belief in constitutional protections for hate speech unaffected, because the countervailing hypothetical that free-speech advocates have always raised in reply to dark scenarios about hate speech––that it is shortsighted to give the state “the power to choose what speech is acceptable and what speech isn't, and use its vast power to punish the difference,” because that state may one day be controlled by a leader “who overtly relishes the power to punish people who think like you do, encouraged by supporters who hate you”––applies every bit as much to the present moment.

The Nazis and the KKK marched.

Yet even now, at the bottom of the slippery slope, a broad reading of the First Amendment is still the framework that best protects ethnic and religious minority groups. In fact, marginalized groups—street activists, Muslim immigrants, Black Lives Matter protesters—would suffer particularly at this very moment if the faction of progressives who want to limit free speech got their way.

Charles C.W. Cooke captured why in a satirical response to a recent New York Times op-ed in which K-Sue Park called on the ACLU to change its approach to free speech, arguing that it provides help to hateful causes and that “the legal gains on which the ACLU rests its colorblind logic have never secured real freedom or even safety for all.”

Cooke wrote:

Park is correct.

It is high time that the ACLU moved onto the right side of History and abandoned the “narrow reading” of the First Amendment that is the result of 50 years of unanimous Supreme Court precedent. In lieu, it must focus on working toward more diverse and productive ends, such as giving Jeff Sessions and Donald Trump the robust censorship powers that they so richly and urgently deserve. The United States federal government is now run at every level by Republicans. So, indeed, are the lion’s share of the governors’ mansions, statehouses, and localities. If the ACLU really knuckles down, it can ensure that these figures — and not pernicious “neutral” principle — determine the edges and contours of America’s civil society.

He added:

‌The ACLU insists that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” But more sensible thinkers grasp that quite the opposite is true. As Park notes, any defense of the status quo “perpetuates a misguided theory that all radical views are equal.” They’re not, and, in consequence, an arbiter is necessary. At first, that should be the ACLU, which should simply let some censorship be – or, even better, start endorsing it. And eventually, having been freed up by the ACLU’s backing away from what Park notes correctly is “only First Amendment case law,” the government itself should assume that role. Then, and only then, will some space have been cleared for the wise.

We have an array of differing views in this country, but I think we can all agree that nobody could be better suited to that oversight role than Jeff Sessions, President Donald Trump, and the thousands upon thousands of state-level Republicans who have been recently swept into office by the infallible will of the people. Furthermore, we should all be able to unite around the appealing chance to hand more power over to the police.

Donald Trump is a man marked out for his wisdom, scholarship, and judicious temperament. But, exquisite as his judgment is, he is able to direct prosecutions only on a macro level. To make the scheme work in practice, America’s police officers must enjoy the legal opportunity to determine what — and who — sits outside of the law’s protection. By insisting upon a consistent application of the First Amendment — and, most problematically, by defending “the legal gains on which [it] rests its colorblind logic” — the ACLU is depriving our cops of this vital first-line oversight role.

In the wake of Charlottesville, that must change.

The faction Cooke is parodying really is that shortsighted.

If rules forbidding hate speech were passed into law and approved by the Supreme Court, they might well prohibit Nazis and Klansmen from marching to anti-Semitic chants, or waving flags with swastikas, or marching in a torchlit parade through the streets, causing some white supremacists to stay home and others to become more radicalized, as happens when groups are prohibited from seeking political remedies.

Meanwhile, Trump and Sessions, the two most powerful law-enforcement figures in the federal government, already draw equivalences between white supremacists and the counterprotesters who meet them on the streets; and they conflate Antifa, a movement that explicitly condones extralegal violence, with Black Lives Matter, a movement dominated by people who reject violence.

Yes, those equivalences are false. And that wouldn’t matter.

Under a legal regime where hate speech was not considered free speech, Trump and Sessions could likely punish words used by members of Antifa and Black Lives Matter. Do you think he’d police their speech more or less vigorously than white supremacists?

Under a legal regime that treated more kinds of speech as incitement, on the theory that Nazis and other white supremacists are pushing an inherently violent ideology, Trump would very likely use the same rules and precedents to target, say, imams at whatever mosques Sessions judges to be inciting Islamist violence; or Twitter activists who tell their followers that punching Nazis is woke. Those whom Trump has taken to calling the “alt-left” would be most at risk.

And the shortsightedness knows no bounds.

“As college presidents try to figure out whether the First Amendment protects conservatives’ right to create political spectacle and instigate violence,” Jennifer Delton writes in the Washington Post, “it might be useful to recall another time when American liberals were forced to sidestep First Amendment absolutism to combat a political foe: the 1940s, when New Deal liberals purged U.S. communists from American political life.” The argument is a perfect illustration of a failure to see what is before one’s nose: an alternative theory of the First Amendment is said by the author to have enabled a bygone faction to purge a leftist minority from political life; and this professor suggests reviving that theory while Trump is in the White House and public university systems mostly answer to Republican legislatures.

It’s been almost 25 years since Henry Louis Gates wrote,

The critical race theorists must be credited with helping to reinvigorate the debate about freedom of expression; the intelligence, the innovation and the thoughtfulness of their best work deserve a reasoned response, and not, as so often happens, demonization and dismissal. And yet, for all the passion and all the scholarship that the critical race theorists have expended upon the problem of hate speech, I cannot believe that it will capture their attention for very much longer... The advocates of speech restrictions will grow disenchanted not with their failures, but with their victories, and the movement will come to seem yet another curious byway in the long history of our racial desperation.

And yet the movement will not have been without its political costs. I cannot put it better than Charles Lawrence himself, who writes: "I fear that by framing the debate as we have––as one in which the liberty of free speech is in conflict with the elimination of racism––we have advanced the cause of racial oppression and placed the bigot on the moral high ground, fanning the rising flames of racism." He does not intend it as such, but I read this passage as a harsh rebuke to the movement itself. As the critical race theory manifesto acknowledges, "This debate has deeply divided the liberal civil rights/civil liberties community." And so it has. It has created hostility between old allies and fractured longtime coalitions. Was it worth it? Justice Black's words may return, like the sound of an unheeded tocsin, to haunt us: "Another such victory and I am undone."

With Trump in the White House, that warning is even truer today. A weakened First Amendment in today’s climate would be marshaled against Trump’s opponents, even as it robbed them of their ability to fight back. It would be a gift to white supremacists, not a blow against them.