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On Free Speech & “Reasonable Limitations”

Eastern State Penitentiary

I shouldn’t need to tell you that there was recently a faux-Nazi1 protest2 in Charlottesville that turned violent, but on the off chance that you’re browsing this blog well after the fact… well, the link is for you. This isn’t about the protest though3, but about the underlying free speech issues that this and other protests have raised.

First things first. Free speech is codified, in the United States, in the First Amendment of the Constitution:

“Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.4

While this originally only applied to the federal government, its protections were later extended to cover both State5 and Federal acts. In its current guise, it covers all government action to curtail speech.6 That is, in a broad sense, the entire scope of the First Amendment. It doesn’t cover Twitter banning a popular figure, or Facebook censoring certain words. It doesn’t cover Yelp not posting your review, or me deleting your comment on my blog.

I thought this concept was pretty straightforward. Americans are smart enough and mature enough to counter hateful, racist, and bigoted speech with words instead of the derogation of their liberties through government mandate or the threat of violence.by private actors. Apparently, though, there are those who disagree, who believe that violence is acceptable, that the derogation of civil liberties is a necessary evil in the quest to rid the world of objectionable philosophies.

To those people, I ask: What happens when someone who objects to your worldview gains power and decides that suppressing your speech is a necessary evil?  Hint: It isn’t likely to end well for your freedoms. And the irony of it will be that your demands for curtailment and restriction in the name of the greater good will be the very same arguments used to keep you silent.

Look. The entire point of the First Amendment (and free expression in general) is to offer an open forum for discussion and debate. It allows us to ferret out the best ideas and to reject the worst ideas, to identify those with whom we’d rather not associate or support. It gives everyone the equal opportunity to present their arguments and defend their positions against their ideological opponents.

The point of a right is that it protects everyone equally. Martin Luther King Jr. and David Duke7 should both have the opportunity to speak their minds, and the rest of us should have the opportunity to judge them on the ideas they present. If we find their ideas devoid of value, we then have the power… using our words… to counter those ideas. We don’t need to threaten them with violence because we already possess a more powerful tool by far.

Our right to speak our mind, without fear of government or private actors.

The best defense against bad speech is always, always good speech.

Following are some of the most popular arguments against free speech and my responses.

Justifications for Violence / Suppression & Counters

 

Justification: “They’re terrorists, so we can silence their entire ideology.”         

Even assuming an individual or a group qualifies as a terrorist (which is not clear in the case of the majority of the scumbags in Charlottesville,) they do not lose the right to engage in speech. They have the same rights as everyone else to engage in speech.

Consider the alternative. We allow the government to suppress speech if someone is designated a terrorist by the government. The government is headed by corrupt people who want to remain in power. Need I finish the thought?

Justification: “Pre-emption is okay if I feel threatened, therefore I can assault them. They threaten me by existing.”

How’s that going to work as a precedent when someone says that a Muslim, black man ‘threatens’ them and use the same excuse? Do we really want to say that a subjective threat is enough to warrant violence? I’m sure fanatics of all stripes would love this idea, but I find it alarming. You already have the right to respond to an immediate threat to your person, but we (generally) use an objective person standard, not an “I don’t like them” standard.

Justification: Hate speech isn’t protected.

Yes, it is, and it has been for quite some time8. Again, do you want a government defining hate speech and curtailing rights based on an administration’s interpretation of what constitutes hate? I don’t.

Justification: “Nazis don’t deserve rights. They’re subhuman.”

That’s what Nazis said about anyone they disagreed with. Are you sure you want to be in that company?


1 – I also considered “Baby Nazi,” “New Nazi,” and “Childish Assholes.”

2 I say protest instead of riot, because it appears to this neutral party that the intent of the majority of the faux-Nazis was to protest, not riot. I am unsurprised that it turned violent, but I do not believe, at this time, that that was their intent.   

3 – I may write about the protest turned violent mob later, but today is not that day.  

4https://www.constituteproject.org/constitution/United_States_of_America_1992

5 – Used here to refer to U.S. States, not Sovereigns.

6 – There are exceptions. The national security exception is a good example. 

7 – If you don’t know… a racist piece of trash who promotes white nationalism and who was once the poster boy for the KKK.

8 – For the most recent example of this concept, try https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/supreme-court-unanimously-reaffirms-there-is-no-hate-speech-exception-to-the-first-amendment/?utm_term=.5ae5ee3a50f5