Shia LaBeouf was arrested today and charged with assault and harassment over a scuffle that involved shoving and grabbing the scarf of a Neo-Nazi. The Neo-Nazi proclaimed on LeBeouf’s performance art livestream that,”Hitler did nothing wrong.”
The incident is one of a few high-profile cases where Neo-Nazis are pushing the boundaries of free speech.
What often happens is critics will weigh in some praising the right to free speech of Neo-Nazis with less exuberant criticism for Neo-Nazism itself. Is free speech an absolute, constitutional right? Should LaBeouf, whose mother is Jewish, stand passively by while someone praises a man that systematically attempted to eradicate Jews from Europe? Should any ethical person tolerate Neo-Nazi disrespect and hate of their person?
For myself, the answer is I have never responded to racists with violence. I have been called a chink and actually had my hair pulled in school hallways. However, a Neo-Nazi should reasonably expect that being hateful and disrespectful to people may result in getting hit. If it had just been one person, I sometimes wonder if I could have put a stop to the daily disrespect by hitting them after no teacher helped me even after reporting it.
Whether it’s intended or not, officials, like universities that allow Neo-Nazis to speak, provide a platform for unlawful speech. What message does that send to the students that Neo-Nazis are unlawfully inciting discrimination and ethnic cleansing against?
The courts have repeatedly discerned incitement from criticism.
Brandeburg V. Ohio
The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”. In Brandenburg v. Ohio (1969), the Court struck down a criminal conviction of a Ku Klux Klan group for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence.
So the charge that I, as an atheist, could be prevented from criticizing religion would not apply as I am not inciting anyone to break laws.
LaBeouf’s arrest shows how widespread the misconception is that free speech is unlimited. As precedent shows, that is not the case. There are exceptions to Free Speech protections. Everyone knows the civic class example of incitement of a crowded theater to panic by yelling “Fire!”. What about Neo-Nazi speech, though?
Neo-Nazi speech violates laws against discrimination and is also incitement to ethnic cleansing no matter how it is couched.
Conversely, violence is unlawful in most situations. A few glaring exceptions are self-defense, defense of others from bodily harm, and protection of property. But what about less egregious and obvious exceptions than those examples? If someone insults your shoes at a bar for example? This is a grey area. How about if someone calls you a “chink” at a bar?
There is actually a case where a Rugby player in London is being tried for breaking the eye socket of a man, who called him a chink. He claims to have shoved him and after that, the man started punching him so he kicked him. Would he have been justified in killing him over an insult? No. People are constrained in how much force they can use in response to the size of the threat. In fact, this may have been a case of unnecessary force and hopefully, the courts make the right call.
The question then is how much force is necessary? That brings us to LaBeouf. Neo-Nazis are an existential threat to racial minorities. With the rise to power of White Nationalist and former Breitbart Editor, Steve Bannon, and an openly racist president who proposes openly racist policy, it is not hyperbole in the slightest that unlawful, racist speech has consequences. There have been ostensible non-White Nationalists praising Bannon’s racist speech as free speech the entire time he rose from obscurity to power.
There is one other free speech exception that may apply here and that is provoking violence using “Fighting Words “.
In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes “fighting words”. Fighting words, as defined by the Court, is speech that “tend[s] to incite an immediate breach of the peace” by provoking a fight, so long as it is a “personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction”
Now there is an exception for celebrities who are being parodied, so LaBeouf is at a disadvantage to the rest of us. However, I would argue that the Neo-Nazi wasn’t simply parodying LaBeouf. He was provoking a fight using personally abusive words. And definitely, look at the degree of LaBeouf’s reaction which was a shove and grabbing the scarf of a man that was in his space to provoke him. I would argue that that is different than finding Neo-Nazis with the intent of punching them. At the very least, the Neo-Nazi should be charged with harassment.
At what point should a just and ethical society protect its citizens from the popularization of unlawful speech? And what can a citizen do if it fails to do so?