How "Free" Is "Speech"?

This piece originally appeared at National Review's "The Corner" Wednesday, 16 August 2017 under the title "There’s No ‘Nazi’ Exception to the First Amendment" and the byline Charles C. W. Cooke

Piers Morgan is at it again:

Morgan is echoing an idea that has been advanced repeatedly in the last couple of days: To wit, that there is something particular about Nazism that makes it ineligible for protection under the Bill of Rights. This is flat-out wrong. And, more than that, it's dangerous. Abhorrent and ugly as they invariably are, there simply is no exception to the First Amendment that exempts Nazis, white supremacists, KKK members, Soviet apologists, or anyone else who harbors disgraceful or illiberal views. As the courts have made abundantly clear, the rules are the same for ghastly little plonkers such as Richard Spencer as they are for William Shakespeare. If that weren't true, the First Amendment would be pointless.

This is not a "controversial" statement. It is not an "interesting view". It is not a contrarian contribution to an intractable "grey area". It is a fact. There are a handful of limits to free speech in the United States, and all of them are exceptions of form rather than of viewpoint. Here's Eugene Volokh to explain that further:

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with "hate speech" in any conventionally used sense of the term. For instance, there is an exception for "fighting words" — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.

. . .

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he's black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he's Muslim (or Christian or Jewish), can be made a crime. But this isn't because it's "hate speech"; it's because it's illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker's ex-girlfriend.
Charlottesville crowd

Under the doctrine laid out by a unanimous Supreme Court in the seminal Brandenburg v. Ohio decision, incitement to imminent lawless action may in some circumstances be prosecuted. But this rule is universal and narrow, and, crucially, is in no way akin to the sort of "hate speech" exceptions that obtain in every other country, and that so many Americans seem to believe exist here, too. Under U.S. law it is legal for a speaker to say broadly that "all the Jews should be killed" or that "it is time for a revolution", or that "slavery is good", and it is not legal for a speaker to say to a crowd, "let's all go and kill that guy wearing the yarmulke", or "meet me in an hour at the armory and we'll start our insurrection at the Post Office", or "look at that black guy over there in the blue t-shirt. Let's chain him to my car." Who is saying these things, however, does not matter in the slightest. Whether one likes it or not, Brandenburg applies as much to neo-Nazis as to the Amish, as consistently to Old Testament preachers as to gay rights activists, and as broadly to my mother as to David Duke. It applies in exactly the same way to good people, to bad people, and to those in between.

It is, in other words, a principle — a principle that cannot be obviated by cynical word games or by thinly disguised special pleading. "I believe in free speech, but..." or "I just don't think this is a free speech issue" — both popular lines at the moment — simply will not cut it as arguments. On the contrary. In reality, all that the
"but" and the "I just don't think" mean is that the speaker hopes to exempt certain people because he doesn't like them. But one can no more get away from one's inconsistencies by saying "it's not a speech issue to me" than one can get away from the charge that one is unreliable on due process insisting in certain cases, "well, that's not a due process issue to me". This is a free speech issue. Those who wish it weren't are just trying to have it both ways — to argue bluntly for censorship, and then to pretend that they aren't.

Leaving aside that the Supreme Court has been extremely clear on this matter, time and time again (inter alia, see: Brandenburg v. Ohio, R.A.V. v. City of St. Paul, Matal v. Tam), it seems obvious as a philosophical matter that any robust free speech protections will have to be assiduously neutral if they are to be useful at all. The purpose of the First Amendment is to deprive the government of the capacity to determine at the point of a bayonet what is true, and what is not; what is good, and what is not; what is acceptable to the ruling class, and what is not. To accept this arrangement is not to suggest that one thinks the Nazis might "have a point", or to imply that one
Free human beings are not obliged to ask their employees in the government for permission to speak their minds
believes that we need the Bill of Rights in case Richard Spencer's "race science" turns out to be true. And, however rhetorically effective it might be to pretend otherwise, it is in no way to defend those people. Rather, it is to propose that the only effective way of preventing governmental abuses is to take away its oversight of viewpoints in toto. Moreover, it is to submit that, having been born with a host of unalienable rights, free human beings are not obliged to ask their employees in the government for permission to speak their minds.

In a country such as this one, that means that disgusting reprobates such as those who marched in Charlottesville will be beyond the reach of the state — at least until they go beyond speech and into the realm of action (which does not include carrying a torch or a flag or wearing a t-shirt, but certainly does include driving a car into another human being). Is that distressing? Yes, it is. Had I been in Charlottesville at the weekend, I'd no doubt have been even more appalled than I was watching it on television. But the salient question is not whether the status quo can be upsetting, but whether it is better than the alternative. Piers Morgan believes that "If America doesn't wake up to" the "fact" that "what these Nazis did in Charlottesville is not free speech . . . it is in deep trouble". It seems obvious to me that the precise opposite is true. "No free speech for fascists" is an incoherent, almost Orwellian, position. Happily — and on a routinely "bipartisan" basis — the Supreme Court concurs.

Charles C. W. CookeCharles C. W. Cooke is the editor of National Review Online and a graduate of the University of Oxford, where he studied modern history and politics. His work has focused especially on Anglo-American history, British liberty, free speech, the Second Amendment, and American exceptionalism. He is the co-host of the Mad Dogs and Englishmen podcast, and is a regular guest on HBO's Real Time with Bill Maher. He has written for the New York Times, the Washington Post, and the Los Angeles Times.

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