Tolerance, Charlottesville, and the First Amendment

Amid the embers of clashes in Charlottesville still smoldering, the disgrace of Nazis marching openly and proudly has opened a conversation among the left as to the propriety of their doing so. Piers Morgan has tweeted that the First Amendment “should [not] be used to protect Nazis.” Writing in The Week, Matthew Walther entitled his piece simply “Censor White Supremacy” and called for just that. Black Lives Matter has stated that in the wake of Charlottesville, “All confederate flags & statue, & groups should be illegal.” Even an establishment figure like former Vermont Governor Howard Dean has tweeted that “the Constitution does not protect hate speech.” House Minority Leader Nancy Pelosi has asked the Park Service to cancel the August 26 permit granted to white nationalists marching in San Francisco. Some 40 percent of millennials in a Pew poll agreed with the concept of banning hate speech which is offensive to minorities. Even the ACLU, long renowned for its defense of free speech as a general principle, has come under attack for doggedly protecting the right of the marchers to maintain shelter under the First Amendment. On August 17, the New York Times published an editorial entitled “The ACLU Needs to Rethink Free Speech,” arguing that distribution of power as between majority and minority groups should be reflected in 1st Amendment jurisprudence. Other nominally progressive writers and organizations have picked up this thread and made similar or interrelated arguments that, in essence, the First Amendment needs a Nazi exception. Google searches for the “Paradox of Tolerance”, a relatively obscure 1945 theory by the philosopher Karl Popper, have skyrocketed since August 12.

The Paradox of Tolerance is, whether cited or not, at the heart of all of the above arguments. It posits that a tolerant society will eventually suborn its own collapse by being tolerant of the intolerant. In other words, it is contradictory to extend freedom of speech to extremists who would use that speech to advocate that which, if successful, destroy the right to speech of the rest. A recent article written on Quartz described the Paradox of Tolerance as a weapon against the white supremacists, in that its precepts can be used to shut down the right of such alt-right members to march: “a white supremacist march differs from a civil rights march because allowing it to go forward would reduce free speech overall by intimidating and silencing people of color and their advocates.” Others have called to “choose sides”, with advocating free speech rights for Nazis choosing the side of hate. It appears that we are splitting asunder in response to the fury of enraged white toxicity, the goals of a prior decade’s foreign terrorists achieved via the auspices of today’s domestic equivalents.

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Following the Paradox of Tolerance and the arguments above to their logical conclusion offers a tempting solution: simply do not tolerate those who advocate for intolerance. Do not permit Nazi hate speech. Do not permit angry young men to parade through a college campus screaming “Jew Will Not Replace Us.” Make criminal any utterance which advocates for the denial of equality in America. It is an alluringly simple neologism which beckons us forward: we can eliminate that which we find repugnant by simply making it so.

Listen, progressive: stop. This is dangerous nonsense, the kind we cannot afford to accept in a moment which requires a full-throated defense of the American Creed. The proper response to the abandonment of principled classical constitutionalism by all too many is not to pick and choose which parts we ourselves are willing to toss to the floor. It is rather to reaffirm the ancient and immutable principles which have guided us through the rocky shoals of extremism for over two centuries, not principally because they are time-worn, but because they are right. In seeking to shut down hate, we run the risk of casting aside our best inoculation against it.

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It should be noted that the Paradox of Tolerance was published at a decidedly odd time for a critique of liberalism’s flaw: in a year where international fascism was thoroughly destroyed by the forces of democratic liberalism. More, America had faced the very paradox in the recent past. The fascist hatred that infected Weimar Germany was not limited to that nation: America and Britain alike saw an upsurge in illiberal political organizing of both the extreme left and right. And yet, it was America, and not Germany, which had the depth of political freedom to contain the passions of the moment. Weimar Germany boasted strong laws against “insulting religious communities” and contrary to historical memory, they were applied frequently. Leading Nazis such as Joseph Goebbels served prison time for violation of hate speech laws. Meanwhile, America’s fascists, such as Nazi-aping Fritz Kuhn of the German American Bund, or Father Charles Coughlin, went untouched, free to parrot their intolerant wares to the American people. Yet it was Germany which succumbed to insanity, and not America. While the reasons are multifaceted and vast, we must remember that the hate speech laws helped the Nazis, not hindered them: the court cases served as effective propaganda that Nazis rather than their opponents were the politically oppressed. As economic and social conditions failed to improve, Nazism was bolstered by comparison — if the leading powers opposed it by law, it must have a power they were right to fear. Der Sturmer, the Nazi newspaper, was shut down or taken to Court 36 times between 1923 and Hitler’s ascension. It was strengthened, not weakened by doing so.

In the United States, meanwhile, our forefathers realized a compelling point: if you give idiots sufficient rope, they will inevitably hang themselves with it. No matter the efforts of the German Bund, it remained decidedly unpopular in 30s era America. Americans were treated to the ridiculousness of fascists parading their insecurity in all their garish glory, and responded as if a man bragging of his size had just dropped his shorts to reveal his meek inadequacy. By use of his own free speech rights, columnist Walter Winchell mocked Kuhn so vehemently that he was already held in ill public repute by the time the federal government prosecuted him for embezzlement and tax evasion. This prospective American Fuhrer stole money from his organization for use on his mistress, and was jailed for doing so, ending his threat by decidedly simpler methods than criminalizing his speech. If you doubt that his downfall by conventional human foible made Kuhn look small and pathetic, view the gleeful reaction today to neo-Nazi leader Christopher Cantwell whimpering in tears on video after learning of his imminent arrest after Charlottesville. Sunshine remains the best disinfectant.

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American Nazi rally in Madison Square Garden, February, 1939

Through our experience and that of Weimar we see that the Paradox of Tolerance has a corollary: just as free speech can be used against the society which promotes it, so too can restrictions on speech be used in precisely the same way, and with infinitely larger permutations of mischief. Once we have enshrined the position that “intolerance” or “hatred” can be properly restricted, we face the all-too-human problem of who precisely gets to define those terms. You may say that it is as clear as day, that Nazis are in the pantheon of intolerance: but as ignominious press conferences have taught us, what is intolerant or hateful is more decidedly in the eye of the beholder than we care to admit. Now, of all times, do we want the government choosing what is hateful or intolerant? We can imagine all too well anything from criticizing antiabortion protestors to agitating for social justice as “intolerance or hatred” from this crowd, can we not? Now should be the perfect time to note the wisdom of the founders in enshrining a neutral principle immune from the political winds of the time and the moral failings of the men sailing below them. Our own history supplies multiple instances when we have, in our fear and hysteria, permitted the government to tiptoe over the line and criminalize free speech, and in each time- the Sedition Acts of 1798 and 1918, the Smith Act of 1940- we have acknowledged in retrospect the absolute folly of doing so. Each time, the Acts were used to jail those who spoke for social change, whether the radical Wobblies of labor organizing fame in 1918 or newspaper editors in 1798. Imagining that the human soul has perfected itself sufficiently since that time to render such uses of a modified first amendment impossible is beguiling foolishness at best.

It is not as if we haven’t been here before. One of the leading First Amendment cases in American history resulted from the attempted march of Nazis in the 1970s through Skokie, Illinois, a predominantly Jewish community filled with Holocaust survivors. The victory of free speech did not lead to the revival of Nazism in the heartland. It exposed the American Nazis for what they were, and remain today: a limp-dicked movement of self-martyr downtrodden white males embarrassed at their own failures. The leading Nazi of the time was convicted two years after this court “victory” of child molestation. So too, the Westboro Baptist Church, which gets its joys in life from picketing the funerals of dead soldiers and yelling hateful slurs. The more they speak, the more they confirm their own pathetic irrelevance. As Justice Louis Brandeis once observed, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

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© Washington Post

Ah, but what of the imbalance of power noted by the Times? What of the marginalization of minorities? Shouldn’t we shut down extreme right-wing protestors from speaking to further marginalize? In a word: no. It is precisely because of an imbalance of power that neutral principles which even angry reactionary government cannot alter to suit the political goals of the movement are worthy of defense. Guns fashioned in weakness to shoot at worthy targets have a funny way of being turned on their creators. That is not to say that the targets of Nazism simply need to grin and bear it. The cure for the imbalance of power in our society between privileged and trampled is not to deny speech to the privileged but to change by determined political action the balance of power. That is how we have made advances before, and certainly, once these dark times pass, will again.

But what of violence? Does the presence of Nazis marching not encourage violence on the part of its opponents? For the purposes of speech, a functional irrelevance. The First Amendment does not permit violence, and the power of the state must be brought to bear on incitements to imminent violence or actual violent acts. But we cannot say that because we feel threatened, they cannot march, cannot associate, cannot speak. That is precisely the argument used against socialists in the McCarthy era and civil rights marchers in the 1960s. That Nazis and civil rights marchers are different is as obvious; that a heckler’s veto can be used against anyone if the recipient of speech has a sympathetic ear in the judiciary or law enforcement should be equally so. As for the potential violence committed by Nazis themselves, this is largely a problem of the Second Amendment, not the First: militia armed with military-grade weaponry is a failure of our gun inanity, not of speech. It is incumbent on the state to ensure that armed marchers, if within the law of being armed, are matched rife-for-rifle, and then some, by forces meant to ensure peaceful demonstration remains just that.

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The Times editorialist mentioned above concluded that “Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history.” Yet surely that conceptualizes the issue poorly. The right side of history is defending American ideals as the republic totters around us: the cause and the side are the same. Underlying the new call to restrain the speech of far-right extremists is what has always underlain calls for restrictions: fear. This is a new fear for the left, for it is an existential fear on the survival of the republic itself, a fear that all we believe is solid is turning to dust around us. The fear of a rising intolerant right inflames those of us already wont to fear the future, and surely, has led many to wonder whether the American experiment in rules-based freedom is doomed. Support from the Executive Branch only highlights our triggering. It is tempting to pull at the strings of that which contain us, to cut around the edges in hopes of fashioning a more favorable garment for this year’s political compact. But this is the false hope which only accentuates the descent down away from the America we wish to be; you cannot save by sacrificing that which is worth saving.

The 1st Amendment is a mirror. It reflects who we are, for better or worse, by the means for which we use it. Sometimes, we may not like what we see staring back, but only by viewing the ugliness can we be the change we prefer to see instead. Refusing to look does not erase that which exists. It simply permits those of us with the luxury to ignore it to continue our ignorance in peace while condemning those without such luxury to face an empowered brewing monster. The First Amendment reminds of a mirror in one other way as well. Once you chip away at a mirror, the entirety of it breaks, and once you break a mirror, try as you might, you cannot put it back together.

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There is a simpler way to do things than attempt to restrict speech for thee but not for me. The Trump voter has sought to make America great again. So be it. I say our moment of maximum greatness was when we devoured and annihilated the Nazi ideology so absolutely as to brand it a pathetic loser, the Washington Generals of the History Channel, for all time to come. We are not descended from fearful men and women, people who shuttered the windows to keep out the night. The best way to beat Nazis isn’t to cower and silence them, giving them a power they do not deserve and most assuredly do not need. It’s to show up and beat them through the very freedom they abhor. Let us expose the hatred for the empty shell cry of pathetic impotence it is. Let us mock, laugh, and depict the human foibles of the self-professed master race. Let us meet them in the streets and shout down their stupid frog and their laughable backyard Tiki torches. We’ve done it before and won. As hard as it is today, with a government providing rhetorical cover for the unfathomable, we can do it again.

Let’s remember one other thing. The forces of righteous egalitarianism rallied, took to the streets, and won the Battle of Charlottesville. Even as we mourn Heather Heyer, we see all around us the awakening of the moral center of a people disgusted by what they have seen. The ethical fury of our democracy is often slow to rouse, and often takes time to reach the correct answer. But so long as we trust in our countrymen and women, we do not need to tear at the Constitution. Trusting in the People is difficult right now, given the absolute mash our collective wisdom has made of things. But government of the people, by the people, and for the people requires no less. We can only save constitutional governance by holding fast to it — all of it — in these times of strife.

Lawyer by day. Star Wars aficionado by night. Hug a wookie and fight the dark side.

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