Does defending Nazis really strengthen the system of free speech? In The Brothers Karamazov, Alyosha, an impressionable young man, visits his mother’s grave, where he has an intense religious experience. Transformed, he declares, “I want to live for immortality, and I will accept no compromise.” Having discovered God—the most important thing in life—nothing else matters. Alyosha enters a monastery, devotes himself single-mindedly to his spiritual mentor Father Zossima, prays fervently, counsels the young, rescues animals, and effects a reconciliation between feuding schoolboys before the death of one of them.
In many respects, certain free-speech absolutists remind us of Alyosha. Until recently, the ACLU has held the line in every case of a proposed free-speech exception, invoking such doctrines and shibboleths as no content regulation; no viewpoint regulation; speech is different from action (you can regulate the one, but not the other); more speech is the cure for bad speech; and governmental censorship and self-aggrandizement are evils always to be feared and avoided.
But as legal realism began to arrive in First Amendment jurisprudence, more than fifty years after its appearance in other areas of law, sweeping aside the assorted mechanical doctrines and “tests,” the traditionally minded, who much preferred things the way they were, shifted their ground slightly. Nowhere was this shift more evident than with regulation of hate speech, symbols, and monuments. With the publication of a number of influential law review articles and books, and the handing down of a trio of decisions by the U.S. and Canadian supreme courts, it now seems possible that cautiously drafted hate-speech codes will survive legal scrutiny (see chapter 2 for two approaches for drafting them).
But are they wise? Formerly assured that formalistic categories and doctrines such as the prohibition against content or viewpoint discrimination would hold, those who oppose hate-speech rules have until recently ignored these questions. Now, like an Alyosha beginning to doubt his faith, they are starting to hedge their bets and argue that even if hate-speech rules are constitutional, they are a bad idea and that colleges, workplaces, and other institutions should not adopt them, even if they could.
Earlier we examined two sets of policy arguments that opponents of such rules have advanced (see chapters 4 and 5). On the left, the ACLU and others have put forward policy arguments based on paternalism. These include what we call the “pressure valve,” “reverse enforcement,” “best friend,” and “talk back” arguments, all of which have in common the insistence that hate-speech rules would injure minorities, whether they know it or not, and should be avoided for that reason.
A second set of arguments characterizes the moderate right. These include that mobilizing against hate speech is a waste of time—minorities ought to have better things to do; that hate speech is a useful bellwether that ought not be driven underground; that running to the authorities every time one suffers a minor indignity merely deepens victimization; and that minorities ought to toughen up or learn to talk back. Each of these arguments, which make up what we call the toughlove position, much like the ones the liberals offer, has answers. Some are empirically groundless, others assume a social world unlike the one we live in, and still others are inconsistent with other values that we hold.
Here we examine one argument that is neither paternalistic nor of the toughlove variety, but structural. Associated with the ACLU and others who take a relatively purist position with respect to the First Amendment, the argument holds that hate speech, Confederate flags and symbols, neo-Nazi marches, and similar forms of expression ought to be protected precisely because they are unpopular. The speech we hate, it is said, must be protected in order to safeguard that which we hold dear. The only way to ensure protection of speech that lies at the core of the First Amendment is to protect that which lies at its periphery. And this inevitably means protecting unpopular speakers: neo-Nazis, anti-Semites, the Ku Klux Klan, utterers of campus hate speech, and marketers of violent video games for adolescents and young men.
What can be said about this argument? It is commonly put forward by lawyers, legal commentators, special interest groups, and even an occasional judge as a reason for protecting odious speech. The argument takes a number of forms, each of which boils down to the insistence that to protect speech of one sort it is necessary to protect another. In all its guises, however, as we shall see, the argument is both paradoxical and remarkably devoid of merit.
As mentioned, the speech-we-hate argument has been put forward by commentators, including ones associated with advocacy groups like the ACLU, as well as by a few courts. In no case that we have found has anyone attempted to argue for its truth or validity; instead, it has been repeated as though a kind of mantra: we must protect X in order to protect Y.
For example, the author of a recent history of the ACLU and a second book on the hate-speech controversy writes that the ACLU believes that “every view, no matter how ignorant or harmful . . . , has a legal and moral right to be heard.” He explains that banning ignorant and hateful propaganda against Jews, for instance, “could easily lead to the suppression of other ideas now regarded as moderate and legitimate.” The free-speech victories that have been won in defending Nazi and other unpopular speech, this writer points out, have also been used to protect rights messages and advocacy.
In two recent books and a series of law review articles, Nadine Strossen, the former president of the ACLU, echoes these views. “If the freedom of speech is weakened for one person, group, or message,” we will soon have no free-speech rights left at all. Thus, for example, “the effort to defend freedom for those who choose to create, pose for, or view pornography is not only freedom for this particular type of expression but also freedom of expression in general.”
In Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties, Henry Louis Gates and his co-author advance similar positions. Gates writes that when the ACLU defended the right of neo-Nazis to march in Skokie, a predominantly Jewish suburb of Chicago where a number of Holocaust survivors lived, it did so to protect and fortify the constitutional right of free speech. If free speech can be tested and upheld to protect even Nazi speech, “then the precedent will make it that much stronger in all the less obnoxious cases.” His co-author, who forfeited his position with the Texas NAACP in order to defend a Klan organization, reiterates the ACLU position through a series of fables, all of which reinforce the notion that the only way to have a strong, vibrant First Amendment is to protect Nazi speech, racist speech, and so on. Otherwise, the periphery will collapse and the government will increasingly regulate speech we regard as central to our system of politics and government.
This type of argument is the favorite of not just the ACLU and its friends. Respected constitutional commentators have employed similar reasoning. A law school dean, for instance, posits that Nazi speech should be protected not because people should value their message in the slightest or believe it should be seriously entertained, but because protection of such speech reinforces our society’s commitment to tolerance. Harvard law professor Laurence Tribe advances much the same idea. In explaining that there is no principled basis for regulating speech based on content or viewpoint, Tribe states, “If the Constitution forces government to allow people to march, speak, and write in favor or preach brotherhood, and justice, then it must also require government to allow them to advocate hatred, racism, and even genocide.” The speech-we-hate argument thus takes on a number of forms. Some argue that there must be a wall around the periphery to protect speech that we hold dear (the center). Others reason that speech that lies at the periphery must be protected if we are to strengthen impulses or principles, such as toleration, that are important to society.
Many years ago, Justice Oliver Wendell Holmes laid the groundwork for the periphery-to-center reasoning by declaring, “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not the free thought for those who agree with us but freedom for the thought that we hate.” He urged that we should be eternally vigilant against attempts to check even the expression of opinions that we loathe and believe to be dangerous.
Later, in Brandenburg v. Ohio, the Supreme Court issued a ringing defense of an unfettered right of free speech. In vindicating the Ku Klux Klan’s right to express hatred and violence toward Jews and blacks, the Court held that unless the Klan’s speech is likely to incite imminent lawless action, our Constitution has made it immune from governmental control. And in the “Nazis in Skokie” case the Seventh Circuit’s opinion reverberated with Justice Holmes’s reasoning. In upholding the neo-Nazis’ right to march in that city, the court wrote that its result was dictated by the fundamental proposition that if free speech is to remain vital for all, courts must protect not only speech our society deems acceptable, but also that which it justifiably rejects and despises.
Courts, then, make many of the same versions of the core/periphery argument that commentators do: without protection for speech we hate, the free marketplace of ideas will collapse; in order to protect speech that our society welcomes we must also protect speech we find repugnant. The argument in each of its guises is essentially the same: to protect the most important forms of speech at the center—political and artistic speech—we must protect the most repugnant, valueless forms at the periphery, including hate speech directed against minorities and women.
As we mentioned, the extreme-case argument is rarely if ever defended or justified. Rather, its supporters put it forward as an article of faith, without reason or support, as though it were self-evidently true. But is it?
If protecting hate speech, buildings named after slave owners, racist monuments, and other forms of low-value communication were essential to safeguarding freedom of inquiry and a flourishing democratic politics, we would expect to find that nations that have adopted hate-speech rules and curbs against pornography would suffer a sharp erosion of the spirit of free inquiry. But this has not happened. A host of Western industrialized nations, including Sweden, Germany, Denmark, Canada, and Great Britain, have instituted laws against hate speech and hate propaganda, many in order to comply with international treaties and conventions requiring them. Many of these countries have traditions of respect for free speech at least the equal of ours. No such nation has reported any erosion of the atmosphere of free speech or debate (see chapter 6).
At the same time, the United States, which until recently has refused to put such rules into effect, has a less than perfect record of protecting even political speech. We persecuted communists, hounded Hollywood writers out of the country, and harassed and badgered such civil rights leaders as Josephine Baker, Paul Robeson, and W. E. B. Du Bois in a campaign of personal and professional smears that ruined their reputations and denied them the ability to make a living.
In recent times, conservatives inside and outside the current administration have disparaged progressives to the point where many are now afraid to use the term “liberal” to describe themselves. Controversial artists are denied federal funding. Museum exhibits that depict the atomic bombing of Hiroshima and Nagasaki have been ordered modified in order to protect the feelings of military-minded viewers. If political speech lies at the center of the First Amendment, its protection seems to be largely independent of what is taking place at the periphery. There may, indeed, be an inverse correlation. Those institutions most concerned with social fairness have proved to be the ones most likely to promulgate anti-hate-speech rules. Part of the reason seems to be recognition that hate speech can easily silence and demoralize its victims, discouraging them from participating in the life of the institution. If so, enacting hate-speech rules may be evidence of a commitment to democratic dialogue, rather than the opposite, as some of their opponents maintain.
A second reason why we ought to distrust the core-periphery argument is that it rests on a paradoxical metaphor that its proponents rarely if ever explain or justify. Suppose, for example, that one were in the business of supplying electricity to a region. One has competitors—private utility companies, suppliers of kerosene heaters, and so on. Ninety-nine percent of one’s business consists of supplying electricity to homes and businesses, but one also supplies a small amount of electricity to teenagers and young adults to recharge their cellphones, which they use a lot.
It would surely be a strange business decision to focus all or much of one’s advertising campaign on the much smaller account. Or take a more legal example. Protecting human security is surely a core value for the police. Yet, it would be a peculiar distribution of police services if a police chief were to reason: “human life is the core value which we aim to protect; therefore, we will devote the largest proportion of our resources toward apprehending shoplifters and consumers of recreational marijuana.”
There are situations in which the core-periphery argument does make sense. Providing military defense of a territory may be one; ecology, where protecting noxious milkweed may be necessary in order to protect migrating monarch butterflies that need the plant for food, may be another. But ordinarily the suggestion that to protect a value or thing at its most extreme reaches is necessary in order to protect it at its core requires, at the very least, an explanation. Defenders of hate speech who deploy this argument rarely provide one. And, in the meantime, a specious argument does considerable harm. It treats in grand, exalted terms the harm of suppressing racist speech, drawing illegitimate support from the need to preserve social dialogue and interchange among citizens.
The harm to hate speech’s victims, out on the periphery, by contrast is treated atomistically, as though it were an isolated event, a mere one-time-only affront to feelings. An injury characterized in act-utilitarian terms obviously cannot trump one couched in broad rule-utilitarian language. The Nazi derives a halo effect from other, quite legitimate and valuable cases of speech, while the African American undergraduate is seen as a lone, quirky grievant with hypersensitive feelings.
But, in reality, hate speech is part of a concerted set of headwinds, including many other cases of such speech, that this particular African American victim will experience over the course of his or her life (see, e.g., chapter 1). If we are willing to defend speech in broad social terms, we should be able to consider systemic, concerted harms as well.
The speech-we-hate argument draws plausibility only by ignoring this symmetry. It draws on a social good to justify an evil deemed only individual, but which in fact is concerted and society-wide. The unfairness of collapsing the periphery and the center as absolutists do would become clear if we rendered the argument: “We protect the speech they hate in order to protect that which we love.” But not only is the argument unfair in this sense, it ignores what makes hate speech peripheral as speech in the first place. Face-to-face hate-speech slurs, insults, put-downs, and epithets are not referential. The recipient learns nothing new about himself or herself. (“What! I’m African American? I had no idea.”) Rather, they are more like performatives, relocating the speaker and victim in social reality. Hate speech is about not the real, but the hyperreal, like an ad about jeans that makes no factual claim but merely shows a woman and a car.
There is one setting in which it does make good sense to argue from the extreme or peripheral case, namely where human beings, as opposed to abstract principles, are concerned. For example, one sometimes hears it said that the test of a civilized society is the degree of protection it affords its least privileged, most despised members. Thus prison reformers argue that a society that locks up and warehouses prisoners under crowded and inhumane conditions with little opportunity for the acquisition of jobs skills, medical treatment, rehabilitation, or recreation is not deserving of the term “civilized.” And so also with treatment of the mentally ill, juvenile offenders, the mentally disabled, and the desperately poor. Here, what we do at the periphery does say something about the way society values things like compassion, forgiveness, and the fair distribution of resources. But people, unlike abstract principles, retain their value and distinctive nature even at the furthest reaches. Human beings are always ends in themselves—there is no continuum of humanness. But our constitutional system recognizes not one, but many values. As we shall show, we cannot treat principles, not even the First Amendment, in that fashion.
Every periphery is another principle’s core; that is the nature of a multivalent constitutional system like ours. Principles limit other ones: X’s right to privacy limits Y’s right to freedom of action, and so on. Indeed, the idea of a constitutional principle, like free speech, that has a core and a periphery would be incoherent without the existence of other values (such as privacy or reputation) to generate the limit that accounts for the periphery. Thus commercial and defamatory speech, which have a lesser degree of constitutional protection than political speech, are subject to limits not because they are not speech but because they implicate other values that we also like. And the same is true of speech that constitutes a threat, provokes a fight, defrauds customers, or divulges an official secret. All these and dozens of other “exceptions” to the First Amendment are peripheral, and subject to limits, precisely because they reflect other principles, such as security, reputation, peace, ownership of ideas, and privacy. To argue, then, that speech must be protected at the outermost extremes even more assiduously than when its central values are at stake is either to misunderstand the nature of a constitutional continuum, or to argue that the Constitution in effect has only a single value, presumably one’s favorite.
Moreover, to argue in such totalist fashion is to violate a principle that is inherent in our constitutional structure and jurisprudence: the principle of dialogic politics. As mentioned, law has not one value, but many. The district attorney wants the ability to protect the community from offenders; all citizens have an interest in not being randomly seized, frisked, and searched. A wants to speak. B does not wish to be defamed. In situations of competing values, judges attempt to “balance” the principles, trying to fashion a solution that gives the appropriate weight to each. (Not an easy task. See chapter 7.)
They are guided by lawyers and briefs arguing both sides of the case, as well as case law showing how judges have balanced rights in similar situations. Inherent in this process is what we call dialogic politics, the notion that in cases where interests and values conflict, people and principles (through their defenders, to be sure) ought to be made to talk to each other. In close cases, judges ought to heed both sides; lawyers representing polar views ought to be made to respond to each other’s arguments.
But the totalist view of free speech admits of no compromise: one’s favorite principle remains supreme everywhere it has a bearing, no matter how slight. This means that one is not obliged to talk to those other persons, not obliged to address those other values. If the whole purpose of the First Amendment is to facilitate a system of dialogue and compromise, this is surely a paradoxical view for a defender of that amendment to be taking.
Every totalist argument is indeterminate because it can easily be countered by an opposite and equally powerful countervailing totalism. With hate speech, imagine that someone (say, the NAACP Legal Defense Fund) argued in the following fashion: (1) equality is a constitutional value; (2) the only way effectively to promote equality is to assure that it is protected everywhere; (3) therefore, whenever equality collides with another value, such as free speech, equality must prevail. “We must protect the equality we hate, as much as that which we hold dear.” Now we would have two values, the defenders of which are equally convinced should reign supreme. Each regards the other’s periphery as entitled to little protection.
“Balancing” as we have seen is troublesome because it can disguise political judgments a judge makes sometimes unwittingly on his or her way to a decision. But totalism is worse—it gives the possessor permission to disdain entering the realm of politics at all. At least, balancing encourages the decision-maker to be aware and take account of the various values and interests at stake in a controversy. With totalism, one has no need to compromise or consider the other side. One finds oneself outside the realm of politics, and instead inside that of sheer personal preference and power-tripping.
With hate speech, the ACLU’s totalist argument introduces special dangers of its own. Hate speech lies at the periphery of the First Amendment, as even its defenders concede. Yet the reason why hate speech does so is that it implicates the interest of another group, minorities, in not being defamed, reviled, stereotyped, insulted, badgered, and harassed. Permitting a society to portray a relatively powerless group in this fashion can only contribute to a stigma picture or stereotype according to which its members are unworthy of full protection—probably because they are, lazy, oversexed, immoral, stupid, and so on. The resulting stereotype guides action for teachers, police officers, and dozens of others, making life much more difficult for minorities in transactions that clearly matter: getting a job, renting an apartment, hailing a cab.
But it also diminishes the credibility of minority speakers, inhibiting their ability to have their points of view taken seriously, in politics or anywhere else—surely a result that is at odds with the First Amendment and the marketplace of ideas. This is an inevitable result of treating peripheral regions of a value as entitled to the same weight we afford that value when it is centrally implicated: we convey the impression that those other values—the ones responsible for the continuum in the first place—are of little worth. And when they are central to the social construction of a human being or social group, the dangers of undervaluing their interests rise sharply. This is so because they bear a stigma, so that they need not be taken fully into account in social deliberations.
Permitting one social group to speak disrespectfully of another habituates and encourages speakers to continue speaking that way in the future. This way of speaking—and thinking and acting—becomes normalized, inscribed in hundreds of plots, narratives, and scripts; part of culture, what everyone knows. The reader may wish to reflect on changes he or she has surely observed over the past decade or two. During the civil rights era, African Americans and other minorities were spoken of respectfully. Then, beginning in the late seventies and eighties, racism was spoken in code. Now, however, many op-ed columns, websites, blogs, letters to the editor, and political speeches deride and blame them outspokenly. Anti-minority sentiment need no longer be spoken in code but is increasingly right out in the open. We have changed our social construct of blacks from unfortunate victim and brave warrior to welfare leeches, unwed mothers, criminals, and untalented low-IQ affirmative action beneficiaries who take away jobs from more talented and deserving whites. And with Mexicans and other Latino immigrants, we have done much the same. The slur, sneer, ethnic joke, and most especially face-to-face hate speech are the main vehicles that are making this change possible.
As we have seen, the extreme case (or core-periphery, speech-we-hate) argument rests on a little examined—and highly paradoxical—metaphor. It adopts a view of fellow humans as mere peripheral figures, and the Constitution as containing only one value. It dismisses the need for dialogue and makes the mistake of treating legal principles as though they were people and ends in themselves.
It treats the interests of minorities as though they were of little weight. It ignores the experience of other Western nations that have instituted hate-speech reforms without untoward consequences. What accounts for this argument’s rhetorical attraction and staying power? We believe the principal reason is that hate speech no longer lies at the periphery of the First Amendment, as the ACLU and other advocates urge, but at its center. In former times, society was much more structured than it is now. Citizens knew their places. Women and blacks understood they were not the equals of white men—the original Constitution made it so, and coercive social and legal power reminded them of that if they were ever tempted to step out of line.
It was not necessary constantly to reinforce this—an occasional reminder would do. Today, however, the formal mechanisms that maintained status and caste are gone or repealed. All that is left is speech and the social construction of reality. Hate speech has replaced formal slavery, Jim Crow laws, female subjugation, and Japanese internment as means to keep subordinate groups in line. In former times, political speech was indeed the center of the First Amendment. Citizens (white, property-owning males, at any rate) did take a lively interest in politics. They spoke, debated, wrote tracts, corresponded with each other about how the Republic ought to be governed. They did not much speak about whether women were men’s equals, should be allowed to hold jobs or vote, whether blacks were the equals of whites, because this was not necessary—the very ideas were practically unthinkable.
Today, the situation is reversed. Few Americans vote, or can even name their representative in Washington. Politics has deteriorated to a once-every-four-years ritual of attack ads, catchphrases, sound bites, and screaming rallies. At the same time, however, politics in the sense of jockeying for social position has greatly increased in intensity and virulence. Males are anxious and fearful of advances by women; whites fear crime and vengeful behavior from blacks. A high percentage of the public was never comfortable with the Obama family in the White House.
Hate speech today is a central weapon in the struggle by the empowered to maintain their position in the face of formerly subjugated groups clamoring for change. It is a means of disparaging the opposition while depicting one’s own resistance to sharing opportunities as principled and just. Formerly, the First Amendment and free speech were used to make small adjustments within a relatively peaceful political order consisting of property holders and members of the establishment.
Now it is used to postpone macro-adjustments and power sharing between one group and others: it is, in short, an instrument of power politics. When neo-Nazis and white supremacists marched in Charlottesville, they marched under the banner of free speech—meaning, of course, hate speech aimed at Jews, minorities, and women who deviated from the role nature supposedly gave them.
Nothing in the Constitution, at least in the emerging realist view, requires that hate speech receive protection. But ruling elites are unlikely to relinquish it easily, since it is an effective means of postponing social change.
In the sixties, it was possible to believe Harry Kalven’s optimistic hypothesis that gains for blacks stemming from the gallant struggle for civil rights would end up benefiting all of society. It was true for a time, at least, that the hard-won gains by a decade of civil rights struggle did broaden speech, due process, and assembly rights for everyone. Today, however, a stunning reversal has set in. Now, the reciprocal injury—safeguarding the right to injure others—has been elevated to a central place in First Amendment jurisprudence.
The injury—of being muffled when one would like to disparage, terrorize, or burn a cross on a black family’s lawn—is now depicted as a prime constitutional value worthy of the highest level of protection. The convergence between black and white interests that produced the sixties lasted but a short time. Now, the ACLU defends Aryan supremacists, while maintaining that this is best for minorities, too. Fierce resistance to hate-speech regulations, which many college and university administrators are trying to put into place in order to advance straightforward institutional interests of their own—preserving diversity, teaching civility, preventing the loss of black undergraduates to other schools—generates a great deal of business for the ACLU and similar absolutist organizations.
In a sense, the ACLU and conservative bigots are hand in glove. Like criminals and police, they understand each other’s method of operation, mentality, and objectives. There is a tacit understanding of how each shall behave, how each shall gain from the other. Indeed, primarily because the Ku Klux Klan and similar clients are so bad, the ACLU gets to feel virtuous, while the rest of us, who despise racism and bigotry, are seen as benighted fools because we do not understand how the First Amendment really works.
But we do. The bigot is not a stand-in for Tom Paine. The best way to preserve lizards is not to preserve hawks. Reality is not paradoxical. Our answer to the question, does defending Nazis really strengthen the system of free speech, is then, generally, no. Sometimes, defending Nazis is simply defending Nazis.