The Argument for Allowing Nazis to Speak

There is much controversy over the question of whether the First Amendment should protect the right of white supremacists and those like them to hold rallies and protests. Many have criticized the ACLU for defending that right. Popehat delivers the proper counter-argument:


This weekend the hypotheticals about how far the Alt-Right might go collapsed into a grim reality. 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.

So, too, has the malevolent government we fear come to pass. We have a President elected on a platform of denouncing the press, “investigating” protest movements, and “opening up” libel laws (however little he can actually do so). We have an administration and its powerful, megaphone-equipped sycophants who define entire diverse protest groups — Black Lives Matter, as one example — by the violent actions or rhetoric of a tiny fraction of their members, and suggest that the state should treat the whole based on that part…

The Nazis, whether armed with rifles or clownishly clad in khakis, stand against our values — they stand for the proposition that some of us are less American than others by birth, and that America must be “preserved” to the tastes of a particular narrow ethnic prejudice. Nazis attacking and threatening our fellow Americans threaten not just their immediate targets but the foundations of everything we’ve built. Decent Americans should speak, organize, and lead against them. This is the end of another classic hypothetical — what would you do if America’s most shameful ancient wrongs were resurgent? What would you do if the Nazis started marching again?

But you cannot destroy a value in order to save it. Nazis — like terrorists — hope that we will abandon principles and fundamentally change who we are out of fear. Assault is assault, threats are threats, murder is murder, and all of them should be vigorously investigated and prosecuted. The allowance for self-defense by those threatened by Nazis should reasonably be generous. But despicable speech is protected by the First Amendment, and should remain so. Our present circumstances show why it is sheer terrified madness to entrust a broad power to prevent or punish speech upon a fickle state. We’ve flirted with that madness of abandoning rights in pursuit of safety for our nation’s whole life. The flirtation has turned sordid and degrading during the War on Crime and frankly self-destructive after 9/11. It would be philosophical suicide to hasten it now by giving a government — a visibly terrible and amoral government — the power to regulate speech. This is the final hypothetical come to pass: if the state asked you to give up freedoms in exchange for a dubious promise it would make you safer, would you do it? Would you convince yourself that the state would only use the power against Them, and not you?

And therein lies the real problem. If you’re going to argue that we should restrict “hate speech,” be clear that what you’re really arguing is that we should give a government led by Donald Trump the authority to decide what is and is not hate speech and to pick and choose, on that basis, whose public expressions will be protected under the First Amendment and whose will be censored.

Do you trust Trump to use that power the way you want him to? I sure as hell don’t. Give him that kind of power and it will be groups like Black Lives Matter who are targeted, not white supremacists. Give him that kind of power and it will be protesters at his own campaign-style rallies who are denied permits to march and arrested if they show up for a rally.

Now here’s what I do not want to hear in the comments: If you’re going to accuse me of being on the side of white supremacists or of not caring about the damage that hateful speech does, consider this a polite invitation to stick such sentiments into your rectum and spin on them. Engage this argument on its merits, not on some false assumption of where my sympathies lie. I despise these people and have a lifetime of activism to prove it. I also don’t want to hear that inane “you can’t shout fire in a crowded theater” cliche. It was a nonsensical metaphor when Oliver Wendell Holmes proposed it, in a case in which exactly this type of speech restriction was used not against the bad guys but against a group of anti-war socialists for passing out pamphlets that opposed the military draft.

I also fully recognize that this is really ugly stuff and that it does emotional and psychological damage to those who are targeted by such groups (and yes, being a straight white guy, I know full well that I am not the target and that I am privileged in this regard). In the abstract, if we knew that we could make sure that only these people would be prevented from speaking under such a restriction on the First Amendment, I might be able to go along with it. But in the real world, that is very unlikely to happen.

In the real world, we would have to write a law that gives government officials this authority, and in the real world the interpretation and enforcement of such a law would be under the control of Donald Trump and Jeff Sessions, not me. There is danger in that, enormous danger, and it’s a law that could very easily be turned back upon those of us who fight against hatred and bigotry. I will end this with Christopher Hitchens’ now-infamous defense of free speech even to the point of defending the right of a holocaust denier to express his vile beliefs.

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