By Edward Fitzpatrick
In 1929, the U.S. Supreme Court ruled that it was OK to deny citizenship to a pacifist from Hungary because she refused to swear that she’d take up arms to defend the United States. But Justice Oliver Wendell Holmes Jr. dissented.
As a former lieutenant colonel who fought in the Civil War, Holmes had no use for pacifism. Still, he wrote, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
All these years later, we might have little problem granting First Amendment freedoms to Rosika Schwimmer, the 52-year-old Hungarian pacifist and suffragist at the heart of that case.
But the proposition becomes all the more difficult and immediate when the test involves a bunch of neo-Nazis, Ku Klux Klan members and white nationalists carrying tiki torches, chanting Nazi slogans and clashing with counter-protesters in Charlottesville, Va., leaving one person dead. The proposition becomes all the more fraught when the president of the United States responds to this racist violence with vexing vacillations and false equivalencies, saving his sustained, undiluted condemnations for the free press.
Nevertheless, we must persist.
We must hold fast to the free speech rights enshrined in the First Amendment, realizing that moments like these are the true test. At moments like this, we must resist the urge to squelch and silence the bigotry and bile. We must have faith that the best way to counter the hate is to speak up, to protest, to vote, to shape public policy to reflect our values. We must allow the bigots the freedom to spout — and to watch their weak and worthless ideas wither and die amid what Holmes called the “free trade of ideas.”
Of course, we recognize the Constitution’s approach to this marketplace of ideas is, as Holmes said, “an experiment, as all life is an experiment.” Many other countries have reached different conclusions after seeing the results of their own experiments. Germany, for instance, makes it a serious crime to display the swastika or any other Nazi symbol, and 11 European nations make it a crime to say that the Holocaust did not happen, as the late Pulitzer Prize-winner Anthony Lewis noted in his 2007 book “Freedom for the Thought that We Hate: A Biography of the First Amendment.”
In fact, Lewis said, the United States itself has not always allowed the breadth of freedoms we now take for granted. In 1798, just seven years after the First Amendment passed, Congress enacted a law punishing disrespectful comments about the president, and (in a scenario the current president might relish), editors were imprisoned for mocking President John Adams.
But as Lewis observed at the outset of his book, “Americans are freer to think what we will and say what we think than any other people, and freer today than in the past.” While that freedom allows torches of hate in Charlottesville, it feeds far nobler ideas that are bound to outshine the lesser lights.
“We have perhaps a naïve belief in the marketplace of ideas,” said Professor David A. Logan, the former dean of the Roger Williams University School of Law who brought Lewis to RWU’s Bristol campus in 2008. “We believe that bad ideas will be trumped and pushed out of the marketplace by their intrinsic weakness and that people who show support for them will go back under the rock the came from under.”
Don’t misunderstand: Allowing hate speech exacts a toll, causing pain and stirring fear among the intended targets, Logan said. As a graduate of the University of Virginia law school in Charlottesville, he was shocked and disturbed by the image of neo-Nazis marching across the UVA Lawn, site of Thomas Jefferson’s Academical Village. “If you squinted, you saw Germany in 1934,” he said. “I know that when government is complicit in a bad idea, really bad things can happen.”
But, Logan said, “By and large, we have set up a libertarian, hands-off model where government is not the referee of what are acceptable ideas.” Certainly, some limited restrictions exist, and a public university may set time, place and manner requirements on a march, he said. “But there are limits to what you can do to that which is evil but nonviolent,” he said.
While some self-described anti-fascist groups try to rationalize violence to shut down white supremacist demonstrations, “that argument falls of its own weight,” Logan said. “No legal principles say you have a right to harm them in anticipation of bad behavior, absent narrow criminal conspiracy statutes.”
RWU constitutional law Professor Jared A. Goldstein said the U.S. Supreme Court has carved out narrow exceptions to free speech rights. For instance, the law allows curbing speech that incites violence — but only if the threat of violence is imminent and likely. So, he tells students, you would be allowed to speak in favor of an animal liberation group that wants to blow up pet stores, but you could be arrested for standing in front of a pet shop with Molotov cocktails at hand.
The law also restricts speech in areas such as defamation, “fighting words” and child pornography, but outside of those restrictions, “people have a right to say whatever they want to say, as abhorrent as it is,” he said.
While such freedom carries a real cost, Goldstein said, “We show our strength as a nation by letting them march. We are not afraid of them.” While bigots have the right to speak, he said, “The rest of us have a right to respond and take any lawful action to oppose them. Counter-protests are just one of many things we can do to show how strongly we disagree and how many there are of us.”
In years past, people have created social norms that, for instance, curtail racial and homophobic slurs, and voters can take a variety of actions to ensure that bigotry doesn’t become baked into public policy, Goldstein said. “The way to get rid of hate is not to get rid of hate speech but to embrace our values of equality through policies. If the problem is racism from neo-Nazis, the way to fight it is to make sure people of color are treated fairly, to work for a more fair society.”
Justin Silverman, executive director of the New England First Amendment Coalition, said, “The First Amendment demands a lot from our country. It requires us to allow racists, anti-Semites and bigots to espouse hateful messages.”
But, he said, “What may seem like a terrible burden is instead a special freedom we all share — one that allows us to speak our own mind without the government telling us we are wrong and that we should stay silent. It’s not too difficult to imagine a political environment where racist policies reign and officials would deny 30,000 people the right to march in the name of equality. Fortunately, we have the First Amendment to prevent the government from playing arbiter and to protect the power of people to express themselves on their own terms. We must have faith that ultimately we as a country will arrive at the most just conclusions.”
RWU journalism Professor Paola Prado said the nation’s commitment to free expression stems from its struggle for independence. “Consider that the framers of the Constitution braved the censorship of King George’s authoritarian rule to disseminate ideals of liberty and freedom,” she said. “No wonder they chose to enshrine the rationale for free expression first in the Bill of Rights.”
That commitment extends to “freedom for the thought we hate,” Prado said. She noted that principle was reinforced as recently as June 19, when the Supreme Court considered the First Amendment implications of singer Simon Tam’s trademark application for his rock band, “The Slants,” a name understood by some to disparage Asian Americans.
In his opinion, Justice Samuel A. Alito Jr. drew on the Oliver Wendell Holmes’ 1929 dissent, saying: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’ ”
Edward Fitzpatrick is director of media and public relations at Roger Williams University and a member of NEFAC’s Board of Directors. This post originally appeared on the university’s First Amendment blog.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
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