In my last essay, I wrote about the hair-trigger in my mind activated by recent events in Charlottesville and beyond. Something happens, sparks fly, and centuries of inherited trauma catch fire, fueled by the pain my young self suffered as a first-generation Jewish-American growing up in a community that made us unambiguously other.
Obviously, I’m not the only one being overtaken by reactivity these days.
We’re in a time of heightened susceptibility. This moment is throwing into high relief essential questions of value and meaning, of harm and healing. People fling them at each other like weapons: if you don’t agree with me on X, you are aiding the enemies of justice. If you aren’t with me on Y, that’s because you can never understand my pain: we may be talking about Z, but you are the real problem.
Today’s case-in-point: freedom of expression. I invite you to think along with me. Perhaps we will be able to reconcile freedom and justice without triggering the flesh-and-blood equivalent of one of those scenes in the original “Star Trek” where Captain Kirk talks a computer into a meltdown.
I have been a First Amendment fundamentalist my entire life. Now I am thinking again.
History demonstrates that whomever is in charge calls the shots: Jews in the Weimar Republic enjoyed wide-ranging free expression; a few years later, when Hitler came to power, they were silenced as a prelude to extermination. American leftists during the Red Scare were disemployed, jailed, exiled for exercising what should have been constitutionally protected speech. The rights held by people of African descent in the South during the post-Civil War Reconstruction period were revoked big time in the vengeful spree its white supremacist adherents called “the Redemption.”
Thus my free-speech position has been supported by a single foundational idea: that for the sake of all, I had better hold expression as a universal human right rather than a privilege granted to those whose ideas are deemed acceptable. While vile racists and antisemites may benefit from that right today, tomorrow I may need to rely on it in a court case brought against my own freedom of expression.
For First Amendment fundamentalists, the antidote to harmful speech is more free speech.
White supremacists have the freedom to say hateful things about Jews, people of color, Muslims, and others they despise, and we are free to expose and condemn them, picket their talks, ridicule them, and raise money for organizations that counter their influence.
Sometimes this works. The Far-right “Patriot Prayer” planned rallies and marches in the San Francisco Bay Area this past weekend, but their opponents organized so vigorously and effectively that the events were cancelled. Counter-protestors filled public space in San Francisco and (albeit with skirmishes and arrests) the East Bay. Patriot Prayer’s founder denied being a racist and told people not to show up in either of the locations for which permits had been issued. A few days earlier, “Act for America,” an anti-Muslim anti-immigrant group, had cancelled the 67 “America First” rallies planned for 36 different states, citing “recent violence” and attempting to distance itself from neo-Nazis who’d spoken at prior gatherings.
I am not the only one thinking twice.
The case that most clearly divided First Amendment fundamentalists from everyone else was the American Civil Liberties Union’s defense of the American Nazi party’s right to march through Skokie, IL, in 1978, when many Holocaust survivors still lived there. Civil libertarian Jews such as I had to believe our future freedom required siding with the ACLU on that occasion. Many others fell away.
In 1978, the Nazi marchers were not armed. Flash forward nearly 40 years to August 16th of this year, before the Bay Area far-right rallies were cancelled and just a few days after neo-Nazis and other white nationalists marched and committed vehicular homicide to “Unite The Right” in Charlottesville, VA. On that day the California ACLU published a statement asserting an important distinction between freedom of speech and armed terror:
Our country’s greatest strengths are the diversity of its people and the principles of equal dignity and inclusion that unite us all. There are troubling events planned in our state in the coming weeks. This is an incredibly painful and difficult time for millions of Californians. For those who are wondering where we stand – the ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble. We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.
How free is speech today?
In the U.S., free speech is not absolute. For example, defamation laws establishing the truth as a defense to the charge of libel predate the Declaration of Independence by decades. I can’t make false and damaging statements about you without risking an expensive libel suit (but that’s a civil action, not a public prosecution).
Here’s an interesting essay about some of the key court cases used to restrict absolute freedom of speech. It seems unsurprising that they all turn on condemning antiwar activists for criticizing the government, since case law tends to be established when the guardians of a social order grounded in privilege feel threatened. Less often—but sometimes, I am glad to say—repressive decisions are overturned when civil libertarians build a winning counter-argument around fundamental constitutional rights.
What is the power of rights?
A court packed with scoundrels can contradict the Bill of Rights; a corrupt government can persecute those exercising their right to free expression, torqueing laws to suit powerful interests. As with any social contract, the whole notion of rights is contingent, worthless without an unbreakable commitment to enforce it. Beyond that, their value is merely symbolic unless resources are deployed to express them. Anatole France’s brilliant point pops into my mind every time I consider the true nature of legal rights: “The law,” he wrote, “in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
Yet, do away with rights and you’re left with the alternative idea that society is a contest of demands. That notion is just as contingent, launching a perpetual battle between popular will and state power.
The slamdance in my head when I try to resolve this conundrum isn’t a simple question. It has three parts. What principles create the possibility of the greatest free expression for the greatest number—while protecting everyone—if only they are enforced?
How to reconcile the duty to protect people as well as their rights?
Well, protect how? A right to free expression, if rigorously enforced, protects you and me from censorship, guaranteeing the freedom to have a say. (But not to be heard. As the journalist A.J. Liebling famously said, “Freedom of the press is guaranteed only to those who own one.”) But what if one of us deploys that right to call for beating, killing, imprisoning, or exiling the other? Increasingly I meet people who feel protected speech is less important than our collective responsibility to protect each other from incitements to harm animated by expressions of hate centered on race, religion, gender, ethnicity, sexual orientation, and other characteristics.
These arguments underpin laws against hate speech in the many countries that have adopted them. Germany’s are certainly the most stringent (here’s an article about a recent series of raids on the homes of people whose social media posts were deemed to violate that country’s hate speech laws). This English translation of paragraph 130, Germany’s “Incitement to hatred” law, details what is prohibited. Although the law has mostly been used to punish far-right hate speech, some far-leftists have also been prosecuted. Not all Germans are sure the limits it creates are part of a healthy democratic discourse, although clearly enough are convinced to have created and to enforce the laws.
The current U.S. Supreme Court (pre-Gorsuch) affirmed this summer that there is no First Amendment exception for hate speech, so if one is to be made, it must be made by law, not judicial interpretation.
The call for anti-hate speech laws is growing.
Advocates of anti-hate speech laws have been circulating a graphic depicting the philosopher Karl Popper’s assertion that “defending tolerance quires not tolerating the intolerant.” (View it with a modicum of caution—remember that self-destructing computer on “Star Trek,” succumbing to extreme reactivity induced by logical contradictions?)
Underscoring the impotence of rights absent the means to express them, advocates point out that the right to free expression is neither equally distributed nor defended. Given the very real power relations that determine how rights are lived out as well as who is to be protected and how, the question grows ever more complex. A longstanding climate of fear shapes the experience of people who are targeted by this country’s homegrown fascists. It’s their daily habit to consider where is it safe to walk or drive. To tell children about the police, about school and work and the many systems and institutions enforcing privilege based on factors such as color. Or heritage. As a first-generation Jewish child, I was brought up to fear the police, to expect that people who hate us will feel free to say so, to expect I would sometimes hear non-Jews say that the systemic extermination of my people was a fiction…and so on.
When the ante is upped by armed militants bearing flaming torches calling out for a future of ever-fresher hells, it is very hard to argue that the social benefit of the First Amendment outweighs the harm their entitlement to free speech permits.
As these debates become more polarized, expressing the preference for unfettered free expression can be condemned as an artifact of privilege, since its keenest advocates seldom have to bear the brunt of the cost. To support that point, people question the purity of civil liberties advocacy, citing the ACLU’s history of questionable behavior. Its national board voted by a huge majority in 1942 to support the government’s right to intern Japanese Americans; some key officers departed from the organization’s radical roots to pass tips to the FBI during the 1950s Red Scare. (Gara LaMarche summarizes a chunk of that history and still comes out an advocate, applauding the organization for its course-correction in the 1970s. Whether or not past sins equal present discredit—well, that’s a reactivity festival for another day.)
Imperfect remedies are better than no remedy.
There is no hate speech law that carries the absolute certainty of fair and equitable enforcement, just as there is no comparable guarantee when it comes to protection of freedom of expression. There is nothing but a conversation about risks and benefits, the potential for imperfect remedies.
Here’s a version of that conversation well worth reading. Even though it was published more than a decade ago, the Index on Censorship’s anthology WORDS & DEEDS: Incitement, hate speech & the right to free expression (downloadable as a free PDF) does justice to the complexity of the current challenge. In her section on hate speech laws, Dr Agnès Callamard, former Executive Director of the international freedom of expression organization Article 19, details the dangers of such laws, including the ways that hate speech laws have been used to suppress freedom, as Turkey has used its law against incitement of hatred to suppress Kurdish nationalism.
Callamard describes the precise conditions with which a law to protect people from hatred must be formulated. Reading her conditions, I have found a way to describe the imperfect remedy I could support without triggering a mental blowout. Callamard points out the necessity of avoiding censorship of ideas in the drive to protect people from harm. I don’t know if that understanding is universal among advocates of hate-speech laws, but it seems essential to me.
Restrictions must be formulated in a way that makes clear that its sole purpose is to protect individuals holding specific beliefs or opinions [here, I would add something to Callamard’s words: “or bearing specific racial, religious, gender or other identities”], rather than to protect belief systems from criticism. The right to freedom of expression implies that it should be possible to scrutinise, openly debate, and criticise, even harshly and unreasonably, belief systems, opinions, and institutions, as long as this does not amount to advocating hatred against an individual.
I’ll end by quoting Callamard’s criteria for bearable hate-speech laws and asking you, dear readers, to consider whether proposed legislation could ever be drafted within these parameters, passed, and equitably enforced:
Specifically, any restriction should conform to the following:
- it should be clearly and narrowly defined;
- it should be applied by a body which is independent of political, commercial or other unwarranted influences, and in a manner which is neither arbitrary nor discriminatory, and which is subject to adequate safeguards against abuse, including the right of access to an independent court or tribunal;
- no one should be penalised for statements which are true;
- no one should be criminally penalised for the dissemination of hate speech unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence;
- the right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance;
- prior censorship should not be used as a tool against hate speech;
- care should be taken to apply the least intrusive and restrictive measures in recognition of the fact that there are various available measures, some of which exert less of a chilling effect on freedom of expression than others; and
- any imposition of sanctions should be in strict conformity with the principle of proportionality and criminal sanctions. In particular, imprisonment should be applied only as a last resort.
Next up in the Oh Crap! I’m Triggered Again series, Monumental Mosh-pit.
Richie Havens, “Freedom,” at Woodstock 1969.
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