Nazi Pride: three things we’re getting wrong about free speech

It’s twelve months exactly today since Heather Heyer was murdered in the leafy, historic streets of her home town, Charlottesville, VA, by James Alex Fields Jr., a neo-Nazi who had travelled all the way from Ohio to join the first ‘Unite the Right’ rally. Nazi Pride might be a better description of the event. His murder trial is due to begin in November.

At the time of last year’s tragedy, I wrote a piece entitled Hate is not a political opinion, which you can read here.

Prior to his trial, we don’t know a great deal about Fields, but – given that he rammed his car into a crowd of counter-protesters – it’s safe to assume that he was not happy that large numbers of people had turned out on the streets of Charlottesville to make clear that neo-Nazi hate was not welcome there. Tragically, one of them never went home again.

Today, having been refused a license to march again in Charlottesville because of the risk of more violence, Unite the Right II is taking place here in DC. In the intervening year, there have been many and varied debates about the growing visibility of the far-right, most of which have generated more heat than light. For me, the most shocking part of the debate has not been that POTUS 45 has been revealed to be a neo-Nazi sympathiser (no surprise there), but that so many Americans feel that nothing can be done about it.

This sense of powerlessness is caused, it seems to me, at least in part by the importance in American thinking of the First Amendment to the Constitution. Since the text of the amendment is very short, here it is in its entirety: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.”

I see no reason to choose between long-standing fidelity to these principles and the urgent need to stem the rise of hate. We can and must do both. But many times in the past year I have been told otherwise. Many intelligent, educated Americans seem to believe that proper adherence to the Constitution requires decent people to sit back, do nothing, and repeat the mantra that neo-Nazis are protected by the first amendment just like everyone else. So they are. But nevertheless, there are multiple problems with this approach. Here are three of them.

1. The first amendment limits the government, but no one else

Let’s start with an easy one. As you can see above, the first amendment is designed to achieve one simple thing and one only: it prevents Congress from passing laws that would restrict religion, speech, the press or assembly. (You could argue that the current administration’s attacks on Muslims and the press offend both the first and third of those, but that’s another blogpost.) The important point for now is this: the first amendment addresses no one but the government, and all it does is to prevent the government from legislating in certain directions.

That principle seemed to have been widely misunderstood as recently as last week when Alex Jones – infamous far-right fantasist and nazi sympathiser – was finally banned by several social media platforms after multiple and persistent breaches of their community rules. It was not surprising to see Jones make the bogus argument that his right to free speech was being curtailed, but more surprising to see many commentators agreeing with him.

In fact, Jones’ disgusting lies (he is currently being sued by several Sandy Hook families after claiming that the massacre there never happened, and by one of the Charlottesville protestors for claiming his video of Heather Heyer’s murder is fake) have precisely nothing to do with his first amendment rights. This week, just as last week, Jones is free to invent and communicate twisted fantasies if he chooses to do so. But no private company (Google or Facebook or otherwise) is required to amplify them. And, when real-world harm is done, the victims are free to set the record straight, including in court, if necessary.

I hope that these victims are successful in their law suits, and that that in turn curbs his hideous behavior. Has that got anything at all to do with his constitutional rights? No, it hasn’t.

2. Constitutional rights to free speech are limited, not unlimited

The distinction between limited and unlimited rights is a very simple concept, but seems often to be forgotten when we get to the business of free speech. Like all the other rights conferred by the Bill of Rights, first amendment rights are limited. In other words, they are not available in all circumstances including, for example, where an activity breaks the criminal law. An obvious example is incitement to violence: since it’s illegal to incite another person (or a crowd) to commit acts of violence, that type of speech is not protected by the speaker’s constitutional rights.

Note, as well, that the language of the first amendment in itself includes an important limitation. The people have a right to assemble only if they do so “peaceably”. Can anyone reasonably argue that the thugs of the Unite the Right movement were acting peaceably in Charlottesville last summer? One death and several injuries suggest otherwise.

It seems incredible, then, that – despite a recent history of violence – the National Park Service granted a license to the very same organizers to march on the anniversary of last year’s deadly tragedy. When presssed on the reasons for that decision, a spokesperson for NPS pointed out that no one could remember a first amendment license application having been refused. While that might be true, it’s not to the point.

More generally, the important point is this: limitations to first amendment rights have been built into the system from the very start, and the proper, legal administration of those limitations represents neither a crisis nor a scandal.

3. The first amendment does not require anyone to be neutral

The saddest and most dangerous argument I’ve heard in the past year revolves around the business of remaining impartial. The logic of this particular nonsense is that, since everyone’s right to say anything at all in public is protected by the Constitution (it isn’t), then all arguments must be worthy of similar exposure and respect, including by the press.

I would argue that the very opposite is true: the fact that speech is free requires both the press and the people to remain vigilant about lies and defamation, and to speak out about them loudly and clearly. The outing of Alex Jones as a slanderous liar by most of the serious press is just one example of that.

But there’s a more important reason not to be neutral: moral courage. If we can’t speak up against hate directed towards people in our own country purely on the basis of their race or religion, we scarcely deserve the freedom of speech that we claim to hold dear.

Elie Wiesel, the Romanian Auschwitz survivor turned American author, famously said the following when accepting his Nobel Prize in Oslo in 1986:

“And that is why I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented. Sometimes we must interfere. When human lives are endangered, when human dignity is in jeopardy, national borders and sensitivities become irrelevant. Wherever men or women are persecuted because of their race, religion, or political views, that place must – at that moment – become the center of the universe.”

So, as the folks in Charlottesville mark the anniversary of Heather Heyer’s death, and the people of DC have to endure neo-Nazis parading through their streets, I hope the rest of us can stop hiding behind spurious, theoretical arguments and instead find something practical to do that will make this country just a little more welcoming to all.

Photo by Jorge Alcala on Unsplash

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