Talking about Free Speech and Nazis

Freedom of Speech is often considered the most fundamental of rights in the US bill of rights. The most sacred and holy of US freedoms enshrined in its Constitution. None the less, it is always in contention and it has not always won the day when challenged by the government which is sworn to uphold it. Nor is it always cherished by the people of the US who, at times, have felt it would be better if some Americans would be kept from speaking their minds.

Like nearly any American, I grew up being taught freedom of speech as one of the core ethical principles of our civil society. And like many Americans, my convictions for this principle are sorely challenged when faced with Americans who stand up and speak out for bigotry, racism, sexism, and other ideologies that denigrate and dehumanize other Americans. When they wrap themselves in the symbology of real life monsters and murderers, it is all the more difficult to justify protecting their right to do so.

So these are my meditations on Free Speech, and specifically whether it makes sense to limit it in the face of hateful and violent speech.

Let’s start with the law

It is true that not all speech has been protected over the years by the first amendment. The US Supreme Court regards freedom of speech very highly and uses its most strenuous tests to determine if the Government can limit it. Only in cases where they felt the state has a “Compelling Interest” in its limitations has it allowed such limitations. Typically, national security, especially in times of war proves a sufficient argument. Cases in which regulations protect the public from immediate danger have also passed muster.

But the SCOTUS has ruled definitively in a recent ruling that Hate Speach, such as racist speech, is absolutely protected and that the state’s interest in promoting civil behavior or protecting others from offense does not constitute a “Compelling Interest.” So the law is firmly on the side of allowing Nazis or the KKK to advocate for their racist and intolerant views. A Compelling Interest is one so strong, that it compels you to accept it, not merely persuades you. It is their highest standard and thus the most restrictive against government action.

Thus there are only two legal avenues that would be open to actually banning Nazis from holding rallies. The first would be to alter the Constitution. The second would be to influence the judiciary sufficiently to get them to reformulate their tests for determining the interest of the state or the nature of what speech is protected. Neither is impossible, but both would be extremely difficult political challenges.

Limits of the Constitution

Keep in mind that the bill of rights applies to what the US government (and the states) can or cannot do with respect to individual liberties. The first amendment does not mean I, as a private citizen, cannot impinge on another person’s freedom of speech. It only means the state cannot, through its actions, deprive you of it without a sufficiently compelling interest. Within my private property, I can more or less dictate what you are allowed to say or not say and can eject you if I don’t like it. I can also make such noise or distraction in public as to make it impossible for you to get your message out. There are some limits, but none of them have to do with the first amendment.

So while private citizens do not have the monopoly of power of the state (ie the ability to determine what is law and to enforce it) we do have considerable “soft power” to limit and hamper the speech of other citizens so long as we violate no other laws in the process. Thus even if the law binds what we can do through the auspices of government, we can decide on the morality of our own actions in light of the principle of free speech.

Why freedom of speech?

So let’s talk about the virtues of the freedom of speech so we can consider the case for limiting them.

Political expression in a democracy

In a democracy (even a democratic republic such as ours) the underlying principle is that the state represents the will of the people, and to that end, the people have a duty and interest in advocating for the sort of government and state action they feel is best for the nation and for themselves. If the state can decide that speech of a particular political viewpoint is intolerable, then that greatly lessens the ability of people with that belief to advocate for the government they would choose for themselves. Thus, an attack on any political view is to some degree, an undermining of the democratic values at the heart of our nation’s justification for existing.

The more restrictive controls on speech become, the more the state cements the current political view and makes it impossible to effect political change through the peaceful means set forth in the Constitution. You eventually end up with a democracy in name only, where only the view currently embodied by the state is accepted and thus it gains all power and authority until it is overthrown by means outside the state mandated system, aka, a radical revolution of some kind.

Personal liberty and identity

A big part of the whole idea of liberty boils down to individual sovereignty. That is the authority over one’s self against the coercion and force of others. Liberty is at the core of American ideology. It is our political rallying cry from early on and to this day. The ability to speak our minds freely is a very personal freedom. To have what you say be controlled and censored by outside others is an affront to most of our sense of individual sovereignty.

Truth and knowledge

Most sane people agree that it the more you know, the better off you are and that knowledge based in truth, is far better than that based on falsehood. This is coupled with a belief, perhaps less well grounded, that the truth will out when pitted against deception and lies. Thus we often feel that an environment rich in speech is one in which truth and knowledge best flourish.

Why not freedom of speech?

Or more to the point, why limit it?

It could undermine democracy

If by permitting views antithetical to democracy, such as fascism or single party communism, free speech allows such views to become popular enough to gain control of a government, the very virtue of free speech could lead to replacing democracy with something more totalitarian. This may seem far fetched to Americans who have enjoyed 200+ years of both freedom of speech and democracy, but it has happened in other countries, including the most famous example of our modern era.

It is something of a catch 22 since such groups that come into power pretty quickly do away with the freedom of speech that helped them overthrow the old democratic system in the first place. Thus while freedom of speech invites the possibility of totalitarianism, a lack of freedom of speech is often one of the first warning signs of a totalitarian regime.

It can undermine the safety and rights of others

While we all like to speak our mind, sometimes what we have to say can have very significant consequences. When someone makes a persuasive call to violence, there is often someone, somewhere, willing to carry out that call. When we advocate for the inferiority of our fellow human beings, others will feel perfectly justified in trampling on their human dignity and individual sovereignty.

Just as speech is inherently a private thing, your individual speech reflecting your views, it is also an inherently public thing. Your words are being heard by others and influencing them and their actions. It is not a direct system of control, but it is an indirect system of influence. Surely there needs to be some accountability for the consequences that stem from what we say in the public sphere.

Indeed the Supreme court has upheld laws where in speech is limited due to the significant consequences or even anticipated consequences of certain types of speech in certain situations. They have ruled that the impact of that speech is such that the government has a compelling interest in abrogating that specific class of speech that is in service to the state and the rights of the citizens it is sworn to protect.

Not all speech contributes to knowledge

Lies, slander, and a host of other sorts of misinformation serve mostly to hide the truth and to create false knowledge in order to exploit people in various ways. Often, free of the dictates of accuracy, such speech can be made superior in interest and purpose to what the truth would demand. Lies can be so much more interesting than the truth and put to an exact purpose for the speaker. Thus it is not so clear that more information, regardless of its quality, means more knowledge and truth.

In this area, civil law is more often availed upon than criminal law. Speech that represents an attack on someone else’s property, including their reputation, can be subject to civil suit and censure. Lies in the service of defrauding another can likewise be brought to court and damages collected. But this leaves little protection for speech in the realm of politics or ideology that is not directed at any one person and has no impact on contract or business.

What if I just want to silence Nazis?

Nazis manage to make the world hate racism, an ideology that has been with us for perhaps all of human history, and which was pretty widely accepted in most cultures in one form or another. Nazis made racism evil by showing us the extremes of bigotry and hatred coupled with the power of the industrial age to mass produce death and degradation. If you want to silence Nazis, congratulations, you have passed a pretty basic moral hurdle in modern life.

Now you can wrestle a bit with how you want to silence Nazis, the morality of those methods, and the practical outcomes of those methods.

Outlawing Hate Speach

Setting aside, for the sake of argument, that you can accomplish this, what is the value and the danger. The approach here is a broad one as it goes beyond Nazis and strikes at anyone advocating the degradation of other human beings based on their identity. The value is pretty clearly to protect people from the consequences of such speech, from their hurt feelings and dignity to the real acts of violence inspired by such ideology. It also gives us some respite from the sheer divisiveness and rancor such ideas almost always create.

The danger is that “hate speech” can have a lot of meanings. As we speak, we have an administration that considers groups like Black Lives Matter or the Communist Party of America to be pervayors of hate speech. And they can point to concrete examples of hateful rhetoric and acts of violence connected to those groups to give creedence to their claims. Depending on who holds sway, any radical voice could be seen as hateful and promoting degradation and violence towards other groups. Many who would be happy to silence a Nazi would be outraged if the same were done to BLM or to American Socialists. But those are very real possibilities in America if the government had a broad mandate to censure speech of this kind.

Outlawing Nazis

Again, setting aside the difficulty in doing this, let’s examine the benefits and dangers. The benefit is that you make it all the more difficult for Nazi ideology to establish a political foothold in the US. You also dampen, to some degree, the amount of hate speech and the impacts there of, if only for a limited group. Finally, it gives us some moral satisfaction of putting into law our moral commitment to oppose such an ideology and its terrible history.

Just as the benefit is far more limited, so are the drawbacks. While it is something of a chip at the principle of free speech, such a specific ban is not going to have a lot of slippery slope problems or the potential abuses with a general hate speech law. You can’t really extend the law to anyone who isn’t a Nazi. But you also have the problem that the people who have Nazi ideologies can simply use other images, names or avenues to preach the exact same repugnant ideas and deal the exact same harms as Nazis would. You only get it in a slightly less obnoxious package. Indeed it could make such ideologies harder to identify and fight against. There is some value in knowing that anyone flying a Nazi flag is pretty much an utter asshole right off the bat. They are perhaps the most hated ideology on earth making anyone taking up their symbols easy fodder for condemnation.

Socially shunning Nazis

The advantage of this approach is that it is entirely legal and due to their unpopularity, pretty easy. Social stigma and condemnation is a pretty powerful thing. No company in America, outside of those run by Nazi sympathizers or catering to them is going to want to have anything to do with them. This makes it easy to effectively apply economic sanctions on any self-declared Nazi. Because they are so hated, it is easy to find motivated members of society who can carry out campaigns against them.

The drawbacks are mostly a matter of how effective we can be in silencing them this way. A lot can be done but there are limits. Ultimately they can still get their message out, and short of criminal activity, it is to possible to entirely silence them as powerfully as if you had the monopoly of state power at your back to lock them up and deny them access to venues of speech. There is also some danger that by drawing attention to them and persecuting them, you can both popularize and publicize their ideas inadvertently. Hitler faced plenty of persecution and ridicule on his rise to power, even violence directed against him by other political rivals and the state. He was once quoted as saying that he could have been stopped either with absolute force or by utterly ignoring his movement, and there may be some truth to that, especially in a democratic context.

My thoughts on what is best

I’m all for taking individual action to oppose and effectively silence Nazis provided they either keep within the law or those doing them are willing to face the consequences of breaking it. I’m not so lawfull I feel that every law must always be obeyed. If your conscience dictates you step outside of it, then you must, but know there are consequences. One of those is that you give ammunition to your ideological opponents that it is you who are dangerous and hateful and not them. Thus I think it is a better tactic to take pains to remain as upstanding as possible while vigorously opposing Nazis and their ilk.

Despite my love of free speech, I think that the idea of outlawing Nazis specifically has more benefit than harm, and does not truly threaten the ideals of free speech. Nazis are not an ideology we want to have any chance of claiming power in the US under any circumstances. It is not such a great abrogation of democratic ideals to lock out a specific ideology that is so antithetical to those ideals. While it might set a slightly worrisome precedent to follow, of itself, it poses no real danger due to its specificity.

I am much more wary about making hate speech a crime. As much as I detest it, I do think there is a very real danger that any such law, broad enough to protect a wide range of people, could and would also be used as a weapon against those very same people. The oppressed are better off having to duke it out in the social sphere with their ideological opponents than giving the state a power which could be used against them in a far more draconian way than the Nazis of America ever could.




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