Antifa justifies its violent actions against neo-Nazis protesting peacefully by saying that the speech of Nazis constitutes violence:

Antifa leaders admit they’re willing to physically attack anyone who employs violence against them or who condones racism — as long as force is used in the name of eradicating hatred…

Antifa members also sometimes launch attacks against people who aren’t physically attacking them. The movement, Crow said, sees alt-right hate speech as violent, and for that, its activists have opted to meet violence with violence.

One hears this sort of self-serving sophistic equation between speech and action a great deal these days from the left, and I suppose some people must find it convincing. But freedom of speech is a right that is legally protected in this country to a greater degree than is usual in other countries because of the overwhelming need to protect liberty.

That does not mean that there aren’t exceptions to free speech in this country. One prominent and obvious one is defamation, and even in that regard we in the US tend to make it more difficult to prove defamation than is generally the case in Europe, and the reason behind that is the importance we give to the protection of liberty in this country. Another exception to freedom of speech in the US is what is referred to as incitement:

The Supreme Court has held that “advocacy of the use of force” is unprotected when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action”. In Brandenburg v. Ohio (1969), the Supreme Court unanimously reversed the conviction of a Ku Klux Klan group for “advocating … violence … as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence.

Unless the neo-Nazis are expressing such an immediate and/or imminent intent, they do not fall under this exception. It is certainly not up to Antifa to decide to stop their speech in an extra-legal fashion through violence. But such distinctions are lost on Antifa and their sympathizers.

Anti-free-speech arguments of a different sort are offered by leftist academics such as law professor K-Sue Park, whose recent op-ed in the NY Times (discussed by Professor Jacobson in this post) took the ACLU to task for defending the free speech of neo-Nazis:

The question the organization [ACLU] should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?…

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.

In other words, the ACLU should loosen its traditional even-handed defense of freedom of speech as a principle of liberty, and adopt a leftist power/class/racial/hierarchical approach and defend only those groups the left thinks are entitled to free speech.

This not only violates our American tradition of defense of free speech even when offensive (which neo-Nazis most certainly are), but it also tends to be more in line with the European point of view regarding free speech. For example, not all countries in Europe ban Nazi symbols such as flags, but many either ban or restrict them in various ways, although they are allowed as free speech here. The restrictions on such symbols are particularly strict in Germany and Austria, for reasons that are obvious.

However, even Germany allows neo-Nazi parties to exist, despite many attempts to get them banned. A recent court ruling (January of 2017) went this way:

Yes, Germany’s National Democratic Party (NPD) is “related to National Socialism”, the country’s supreme court in Karlsruhe said on January 17th. And yes, its aims are to undermine Germany’s constitution and ultimately to establish an ethnically pure German Volk. And yet, the red-robed judges opined, there is no sign that the NPD could come close to fulfilling its goals. The party, it ruled, will therefore not be banned.

This landmark verdict ends a decades-long saga of failed efforts to declare Germany’s neo-Nazi party illegal…

… the standard of proof for banning political parties, mandated by the European Court of Human Rights in Strasbourg, is high. In societies that value free speech and association, it is not enough to prove even the worst motivation; a party must also have a “real potential” to make good on evil designs.

And in Germany, neo-Nazis are even allowed to demonstrate, as long as they meet certain very stringent rules:

Germany has long enforced a strict ban on Nazi symbols or anything to do with glorification of the Third Reich.

For the neo-Nazi march, one flag per 50 people was allowed, images of Rudolf Hess [the man whose death was being commemorated] were forbidden, as were drums and military music. Police individually searched each marcher in a specially set-up tent before allowing them into the penned-off march area. The neo-Nazis had to cover up tattoos and they weren’t even allowed to chant slogans. In a country where guns are banned, nothing more dangerous than a mobile phone was allowed on them.

The German authorities are trying to walk a fine line here; they probably don’t want to make free-speech martyrs out of the relatively powerless neo-Nazis. The Germans may even be aware of the history of what happened in Germany during the 1920s and 1930s regarding the restriction of Nazi speech:

…[In the 1920s and 30s, Nazis did go to jail for anti-Semitic expression, and when they were released, they were celebrated as martyrs. When Bavarian authorities banned speeches by Hitler in 1925, for example, the Nazis exploited it. As former ACLU Executive Director Aryeh Neier explains in his book Defending My Enemy, the Nazi party protested the ban by distributing a picture of Hitler gagged with the caption, “One alone of 2,000 million people of the world is forbidden to speak in Germany.” The ban backfired and became a publicity coup. It was soon lifted.

There is nothing easy or pleasant about deciding how to deal with groups such as neo-Nazis. But free speech in this country demands that they be allowed their say and even their marches and their symbols, or we compromise the liberty we hold so dear.

Or do we hold it so dear? According to this poll (taken in 2015), Millenials are considerably more likely than previous generations to advocate bans “to prevent people publicly making statements that are offensive to minority groups.” The figure for Millenials supporting such a ban is 40%, which is not a majority. But it’s a troublingly large minority, particularly compared to the range for other generations: 27% among Gen Xers, 24% for Boomers, and 12% among Silents.

The trend is clear.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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