Discussions of free speech in America are usually dominated by hypotheticals — or by slippery slope arguments, if you prefer.
The First Amendment unquestionably and broadly protects what we call “hate speech.” If you point that out, you get hypotheticals in return. “Really? So, the day that Nazis march the streets, armed, carrying the swastika flag, sieg-heiling, calling out abuse of Jews and blacks, some of their number assaulting and even killing people, you’ll still defend their right to speak?” That literal parade of horribles is invoked when free speech defenders talk about anything from bigot college kids acting out to Alt-Right racism online.
We free speech defenders are just as quick with hypotheticals; it’s built into our worldview. “Really? So you’d give the state the power to choose what speech is acceptable and what speech isn’t, and use its vast power to punish the difference? You’re comfortable giving it that power, even though some day that state might be controlled by an implacable enemy of everything you believe in, a tyrant who overtly relishes the power to punish people who think like you do, encouraged by supporters who hate you?” The unprincipled-tyrant-that-could-be is a staple of First Amendment rhetoric.
Hypotheticals – called slippery slopes when you’re dismissing them – are supposed to require some imagination, are supposed to involve some projection about how current events could deteriorate to an ugly future scenario. How will it change our thinking when that ugly future is now?
Last weekend the hypotheticals about how far the Alt-Right might go collapsed into a grim reality. Literal Nazis marched the streets of an American city, calling out Jews and blacks and gays, wielding everything from torches to clubs and shields to rifles, offering Nazi slogans and Nazi salutes. Some of their number attacked counter-protesters, and one of them murdered a counter-protester and attempted to murder many others. This is the “what if” and “how far” that critics of vigorous free speech policies pose to us as a society.
So, too, has the malevolent government we fear come to pass. We have a President elected on a platform of denouncing the press, “investigating” protest movements, and “opening up” libel laws (however little he can actually do so). We have an administration and its powerful, megaphone-equipped sycophants who define entire diverse protest groups — Black Lives Matter, as one example — by the violent actions or rhetoric of a tiny fraction of their members, and suggest that the state should treat the whole based on that part. (This, ironically, is exactly what the Nazis are now complaining that people are doing.) Rhetoric from officials and their media supporters about protest groups is full of accusations of incitement of crime and group criminality and conspiracy. Across the country, conservative legislators rush to craft statutes to protect people who run over protesters with cars. The NRA, one of the most powerful lobbying groups in the country, is putting out chillingly totalitarian propaganda videos to gun owners portraying protest against the regime as uniformly violent and criticism of the President as “inciting” that violence, and exhorting them to defend themselves and the regime from the violent protesters and their inciters. And we have a President who seems to respect no American norms.
What do we do when we near the bottom of the slippery slope?
These are hard times. Our values should be our beacons to lead us through them. Those values include due process, the rule of law and equality of all people before it, and freedom of speech and worship.
The Nazis, whether armed with rifles or clownishly clad in khakis, stand against our values – they stand for the proposition that some of us are less American than others by birth, and that America must be “preserved” to the tastes of a particular narrow ethnic prejudice. Nazis attacking and threatening our fellow Americans threaten not just their immediate targets but the foundations of everything we’ve built. Decent Americans should speak, organize, and lead against them. This is the end of another classic hypothetical — what would you do if America’s most shameful ancient wrongs were resurgent? What would you do if the Nazis started marching again?
But you cannot destroy a value in order to save it. Nazis — like terrorists — hope that we will abandon principles and fundamentally change who we are out of fear. Assault is assault, threats are threats, murder is murder, and all of them should be vigorously investigated and prosecuted. The allowance for self-defense by those threatened by Nazis should reasonably be generous. But despicable speech is protected by the First Amendment, and should remain so. Our present circumstances show why it is sheer terrified madness to entrust a broad power to prevent or punish speech upon a fickle state. We’ve flirted with that madness of abandoning rights in pursuit of safety for our nation’s whole life. The flirtation has turned sordid and degrading during the War on Crime and frankly self-destructive after 9/11. It would be philosophical suicide to hasten it now by giving a government — a visibly terrible and amoral government — the power to regulate speech.
This is the final hypothetical come to pass: if the state asked you to give up freedoms in exchange for a dubious promise it would make you safer, would you do it? Would you convince yourself that the state would only use the power against Them, and not you?
We’re a long way from perfect. But we are better than this place we find ourselves. We can climb out of it.