By David K. Shipler
Perhaps alone among established democracies, the United States enshrines in constitutional law the right to preach bigotry. Canada’s Human Rights Commission can levy hefty fines for speech “likely to expose a person or persons to hatred or contempt.” Australia’s Racial Hatred Act punishes expression and action likely “to offend, insult, humiliate, or intimidate” based on a person’s or group’s race, national, or ethnic origin.
Germany in 1985 became the first country to ban Holocaust denial. Further, anyone who “incites hatred against segments of the population . . . or assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population” is subject to five years in prison.
Nazi symbols, anti-Semitic speech, and Holocaust denial are prohibited in at least 14 other European countries, plus Israel. The Czech Republic also bans the denial of communist crimes.
The constitution of post-apartheid South Africa, while guaranteeing freedom of expression, excludes from that protection “advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm.” The late Arthur Chaskalson, an author of the constitution and then South Africa’s chief justice, once explained patiently to me that his country’s oppressive racial history required constraints on inflammatory speech.
Would this be a good idea for the United States? We certainly have a corrosive legacy of racism, now hailed by white supremacists who get a wink and a nod from President Trump. But other countries that have suppressed expressions of bigotry have not eliminated bigotry, which has just been driven underground to fester in darkness without vigorous rebuttal.
Yugoslavia’s communist regime kept an authoritarian lid on historical animosities among Serbs, Croats, Bosnians and others along religious and ethnic lines, but once communism collapsed and the dictatorship dissolved, the lid was taken off, and the hatreds boiled up into Europe’s most vicious, genocidal war since the defeat of Nazi Germany.
The Soviet Union, whose communist propaganda pretended that ethnic distastes and stereotypes didn’t exist, broke up into 15 countries along national and ethnic boundaries. Czechoslovakia, where Czechs and Slovaks harbored underground aversions to each other, divided peacefully into the Czech Republic and Slovakia. Hungary’s endemic anti-Semitism has risen to the surface. And in Western Europe as well, rightist movements preaching intolerance toward Muslims—and often Jews—have gained political traction.
The American concept of free speech—an expansive permissiveness shielded by the First Amendment and its robust interpretation by the courts—relies on the stability of the social order and the wisdom of the people. If neither the government nor the society is fragile enough to be shredded by spasms of hatred, and if hateful ideas, when turned into the sunlight, will be cured by the broader public’s rebuttals and denunciations, then we are safe.
If these assumptions are correct, bigotry at the margin poses little risk in the United States. It can be permitted because its resonance is limited. For better or worse, the same can be said of Marxist or socialist preaching on the left; it cannot succeed against the American economic, political, and social order, at least at present. Only when a threat is exaggerated enough to seem real—Japanese-Americans during World War II, for example, and communist influence in the early Cold-War era of McCarthyism—do members of those groups face persecution and prosecution.
The First Amendment is not essential in protecting a consensus, for a consensus doesn’t need protection, but in insulating the unpopular, the extreme, and the hateful from government censorship and prosecution--“not free thought for those who agree with us but freedom for the thought that we hate,” as Oliver Wendell Holmes, Jr. declared.
Since the Bill of Rights, beginning with the First Amendment, restricts only what government can do, not what private entities can do, corporations and private universities usually have latitude to punish racist speech, for example, but state-run universities do not. Students on the left who want their public universities to silence rightwing speakers cannot succeed legally. Nor can government agencies censor employees when they are speaking as individuals outside their workplaces, unless they are deemed to be representing the agency.
Burning through the debate that has followed the frightening march by white supremacists in Charlottesville, Virginia, is the question of whether government should ban such demonstrations and the hate speech online and elsewhere that fuels such movements. Considerable rancor has focused on the American Civil Liberties Union, which represented the march organizers successfully in federal court when they were told to move their gathering a mile or so from the ostensible target of their demonstration: a statue of Confederate general Robert E. Lee that was slated for removal. A judge ordered the city to allow them to congregate at the monument.
The episode turned brutally violent. The supremacists and neo-Nazis carried guns, bats, torches, swastika-adorned flags, and placards celebrating their bigotry. They chanted, “Jews will not replace us!” “These streets are our streets!” and “Blood and Soil!” an old Nazi slogan. They fought with anti-fascist counter-protesters, and a white supremacist adopted an ISIS technique by driving a van into a crowd of anti-fascist demonstrators, killing a 32-year-old woman.
Some ACLU members resigned, and the organization did some soul searching, reaffirming its policy of denying representation to groups that would carry arms or plan violence. But you don’t always know in advance, and the ACLU claims it did not know in this case. In any event, the organization usually takes a purist stand in defending constitutional rights, and is proud of standing up for those anywhere on the political spectrum, including those with whom it acutely disagrees—as it did in supporting the right of Nazis in 1978 to march in the Jewish town of Skokie, Ill.
Laws prohibit violence, of course, and there is no First Amendment right to commit or incite it. And while modern American case law has mostly defined incitement narrowly—it must promote an imminent attack on a specific target—it seems correct for the ACLU to draw that line and stick to representing the right to peaceful expression.
As the First Amendment stands, government cannot usually restrict speech based on its content alone, and cannot set rules favoring one point of view over another. The time and manner of expression can be regulated, but they must be regulated similarly for all. So, a political campaign can be prevented from using loudspeakers in a residential neighborhood at 3 a.m., as long as all campaigns face the same ban.
So, the ACLU is correct in arguing that if the white supremacists were barred from speaking or demonstrating peacefully, the shield of the First Amendment would be pierced for all. Government would gain the power to choose which content could be suppressed. Imagine giving that authority to the Trump administration.