Why the left needs to re-embrace the First Amendment

Censorship of the alt-right is tempting, but history tells us it will backfire. 

Harry Blain
15 May 2017
Harry Blain.jpg

Credit: Flickr/Newtown Graffiti. Some rights reserved.

Why, around 40 years ago, did the American Civil Liberties Union (ACLU) defend the right of the Nazi Party of America to hold a march in a majority Jewish Illinois town which was home to 5,000 Holocaust survivors? Why has the ACLU, founded in the midst of the country’s “Red Scare” in 1920, filed federal lawsuits on behalf of the Ku Klux Klan and the notoriously homophobic Westboro Baptist Church?

Viewed from Europe, where a man was once fined for a “loud belch”, the American commitment to free expression—even for racists, fascists, Nazis, and bigots—often seems extreme. However, in recent years there have been growing calls, particularly on American college campuses, for limits on First Amendment protections for categories such as ‘hate speech’ and ‘violent verbal conduct.’

The Foundation for Individual Rights in Education (FIRE) has tracked this movement closely, and suggests that “39.6 percent of the 449 colleges and universities” it analysed in 2016 “maintain policies that seriously infringe upon the free speech rights of students.” Specific examples reflect a growing emphasis on student sensibilities over free expression: quoting the N-word verbatim from The Adventures of Huckleberry Finn is “an explicit act of racial violence”; Things Fall Apart, The Great Gatsby, and The Merchant of Venice come with “trigger warnings”; and the annual performance of The Vagina Monologues can be cancelled because “the play excludes the experiences of transgender women who don’t have a vagina.”

Although ‘trigger warnings,’ restrictive speech codes and expansive definitions of ‘hate speech’ are often ridiculed by the right, they represent serious attempts to create a more sensitive political vocabulary that is mindful of the harm that can flow from words—even unintentionally. But the broader debate raises some serious questions for those on the left who want to both protect marginalised social groups and maintain open political discourse.

Do we support free speech for those who would silence us if they had the chance? Do racists—even Nazis—deserve the protection of the First Amendment? Is the revolt against ‘political correctness’ urged on by President Trump and others simply the last line of defence for privileged white males who are threatened by evolving social norms? Should historically oppressed groups be protected from right-wing ‘hate speech’ on college campuses?

These are both personal and political questions. Many of us may passionately agree in principle with Evelyn Beatrice Hall’s famous statement that “I disapprove of what you say, but I will defend to the death your right to say it.” But when translating this sentiment into our lives, are we comfortable telling a transgender person that we extend this right to those who tell them they are “simply gay men dressing up for attention”? Or telling Mexican-Americans that the right to free expression protects those who call them “rapists, pederasts and child abusers”?

Any attempt at resolving the tension between defending free speech for all and challenging economic, racial and gendered oppression must go beyond the realm of abstract philosophical debate. It must be rooted in history, politics and—the most difficult part—an honest appraisal of how our personal convictions square with our worldviews.

To begin with, it is important to assess arguments that seek to define the limits of free speech. On this point, conservative activists have frequently contrasted their absolutist position with that of left-wing ‘snowflakes’ who they see as obsessed with policing language.

Although this ignores the fact that the right’s commitment to free speech is often selective, the notion that “the rhetoric of free speech” has become a “delusion” to “facilitate bigotry” overwhelmingly originates from the left. It stems from the view that ‘hate speech’ is corrosive: free speech isn’t absolute, and ‘you can’t shout fire in a crowded theatre’ as the saying goes, because of the potential consequences if a stampede were to occur. The same applies to stoking up hatred and discrimination in divided societies.

Moreover, there are legitimate question marks against the idea that a “neutral marketplace of ideas” exists. Because of underlying social inequalities, certain voices—which “tend to be white, straight, male and class-privileged”—are inherently louder than others. There’s a danger that these privileged voices are defending free speech not out of any commitment to principle but to protect their continued dominant social position.  

Such arguments have strong foundations. It’s true, for example, that even with the clear wording and protections of the First Amendment, free speech is not considered to be absolute. Contrary to what is sometimes argued, there is no credibly accepted “hate speech” exception to the First Amendment, but libel laws, for example, acknowledge that limits do exist.

Although conservatives like Milo Yiannopoulos have seemingly built their careers on shouting ‘fire in a crowded theatre’ at every opportunity, it’s worth remembering that this charge was originally made by Supreme Court Justice Oliver Wendell Holmes against anti-war activists, and was given legal underpinning by the Espionage Act. The 1919 case, Schenck v. United States, “upheld a man’s conviction for distributing leaflets opposing the military draft” because, in Holmes’s words, “when a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

“Comrade Schenk” was not the only socialist who discovered the limits of free speech. Rose Pastor Stokes was given a ten-year prison sentence in 1918 for saying that “the government is for the profiteers”; five-time Socialist Party Presidential Candidate Eugene Debs was thrown behind bars for seditious anti-war speeches; and a Minnesota man also earned a prison sentence for telling volunteer knitters that “No soldier ever sees these socks.” All, apparently, were shouting ‘fire’ and had to be silenced. Their only weapon was the First Amendment, whose defence became a leading cause of the American left from Debs and Stokes through to the free speech movements of the 1960s.

Why does this history matter? In one sense, it gives important context to one of the most commonly quoted statements abridging the right to free expression, indicating why it has since been described by the ACLU as “worse than useless” and has been decisively rejected in subsequent court cases. But it also demonstrates how the First Amendment has been central to defending the marginal and the oppressed—and not just the “white, straight, male, and class-privileged.”

It was Martin Luther King’s defence against Governor George Wallace’s attempt to “protect public safety” by banning his march on from Montgomery to Selma in 1965; Reverend B. Elton Cox’s defence against the sheriff of Baton Rouge, Louisiana, who had accused him of “inflammatory” speeches advocating sit-ins at segregated lunch counters; and the principal recourse for 187 black students in South Carolina who were charged with “breaching the peace” for protesting at the site of the state government in 1961.

In these cases, the precedent for First Amendment protection had been set by a racist priest expelled from the Catholic Church, and it was later strengthened by cases defending the Ku Klux Klan and the American Nazi Party. This is why leading progressive intellectuals such as Noam Chomsky have signed petitions supporting free speech for Holocaust deniers using the justification that “you either believe in free speech for views you despise, or you don’t believe in it all.”

Defending the First Amendment isn’t a lofty, abstract principle derived from classical liberal philosophy, but a recognition of the fact that even a seemingly innocuous exception to the right of free expression can easily become a rule.

Today of course, activists on college campuses aren’t advocating for censorship from the Federal Government. But they and their universities are heading in a troubling direction. The University of California at Berkeley’s recent cancellation of Ann Coulter’s planned speech due to “security concerns” follows the same logic as Wallace’s attempt to ban the 1965 civil rights march. The university couldn’t guarantee her security from the students who posed “active security threats”; Wallace maintained that he couldn’t guarantee King’s security from angry whites.

This is often known as the “Heckler’s veto”—restricting free speech because it’s likely to provoke a heated response. If activists on the left want to impose it on Coulter, Yiannopoulos, Charles Murray or the countless other conservative speakers accused of ‘hate speech’ or ‘violent verbal conduct,’ they can have no complaints when it’s imposed on them.

Defending free expression for even the most abhorrent views may seem like a luxury while violent immigration raids are accelerating, reproductive rights are threatened and far-right strategists are making themselves comfortable in the White House. However, with a Republican administration displaying constant hostility to activists and the press, this is a dangerous time for the left to be wavering in its commitment to the First Amendment. In the ACLU’s words: “If the government gets to decide which speech counts as hate speech, the powers that be may later feel free to censor any speech they don’t like.”

However, there is a deeper issue here. A progressive or transformational political movement is—almost by definition—based on the constant questioning of authority, the refusal to believe anything until it’s officially denied, and a willingness to entertain dangerous ideas. This has never been confined to fiscal policy, healthcare, trade agreements or tax reform; it’s a much more fundamental commitment to critically examining our culture, worldview and daily life.  Only free speech, with all its risks and controversies, can renew this commitment.

Defending the First Amendment is not just a strategy to protect our views from state repression, it’s an imperative to re-examine ourselves continuously, jarring us out of our complacency and challenging both our reason and our emotions. As Zach Wood of Williams College puts it: “We should not settle for merely refining and advancing our own ideas”; instead, we should embrace “uncomfortable learning” on campus and beyond. This “uncomfortable learning” is central to the history and identity of the left. Now is the time to reclaim it.  



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