Charlottesville fundamentally altered my relationship with the First Amendment.
When I was a fourteen-year-old boy in the late 1970s, my heroes were mostly celebrities and historical figures like Bruce Lee, Clint Eastwood, General George Patton, Bob Dylan, and Robin Hood, except for two: my grandfather, who served in the army in the Pacific Theatre during World War II and David Goldberger, the lawyer who defended the right of neo-Nazi protesters to march in Skokie, Illinois.
I knew about Goldberger because I was a voracious reader and a sophisticated consumer of news and current events. I had read that in 1977, a man named Frank Collin, the leader of a group called the National Socialist Party of America, applied to the town of Skokie for a permit to demonstrate. The permit would have allowed his small group to march through the downtown of this heavily Jewish Chicago suburb where one in six residents was either a survivor of the Holocaust or directly related to one. In response, the town passed several ordinances designed to block the demonstration. One would have prevented the marchers from displaying the swastika, the Nazi symbol. The U.S. Supreme Court ordered the state of Illinois to review the case and the Seventh Circuit ultimately decided that the town’s ordinances were unconstitutional. In the end, the neo-Nazis decided not to march in Skokie; instead, they staged two marches in nearby Chicago.
Goldberger is Jewish, and at the time, he worked for the American Civil Liberties Union (ACLU). As a teenager, I was fascinated to learn that a Jewish person would, on principle, defend the rights of Nazis to display the swastika in America. To me, he was a kind of warrior for the First Amendment, a defender of Constitutional freedoms. A woman once asked him, “Would you defend the Nazis if they wanted to march through your neighborhood?” He replied, “Lady, defending them is like having them march in my neighborhood.” I thought he was funny, smart, and courageous. I still do.
What I did not see then was the fierce debate going on behind the scenes at the ACLU. In the aftermath of Skokie, 30,000 ACLU members left the organization, one out of every seven. Many members turned on each other, and for a time, the disagreement over Skokie tore the organization apart.
The New York Times illuminated this struggle in a 1978 article about a contentious debate between ACLU leaders. Aryeh Neier, the ACLU executive director at the time, said:
The right to free speech is always tested at the extremes For that very reason it is the extremes that have the greatest interest in protecting the rights of their enemies. Once the freedom of one group is abridged, that infringement will be cited to deny the rights of others. The people who most need the A.C.L.U. to defend the rights of the Klan are the blacks. The people who most need the A.C.L.U. to defend the rights of Nazis are the Jews.
Marshall Perlin, another ACLU member, replied:
The law is not neutral. The courts are not neutral. The A.C.L.U. is not as neutral as it pretends … When you talk abstractly about the First Amendment you are ignoring the rights of blacks, which are in imminent and real danger now.
This conversation occurred forty years ago, but we could be having it right now. Two years ago, Nazis and the Klan actually marched, together, through the streets of another town that did not want them there, Charlottesville, Virginia. The ACLU defended the demonstrators’ right to march, as they did in Skokie, and some members quit the organization because of it. The terms of the debate have not changed: Do we treat the First Amendment as a near-absolute legal principle that is universally applicable to the political speech of all Americans, no matter how repugnant that speech might be, or should our laws about speech and expression flow from, and respond to, the lived history of the United States?
The Europeans and Canadians have taken the historical approach. In Germany, for example, it is a serious crime to display a swastika. Eleven European countries have made it a crime to deny the Holocaust. Canada has a similar law. These laws were written to respond to the history of fascism and World War II, which left much of Europe in ruins. These countries were willing to suppress fascist symbols and speech to prevent a resurgence of fascism.
The American approach since the 1960s has been quite different. The U.S. gives broad legal protection to most forms of political expression—even the most repugnant—except in cases where this speech can be shown to advocate or incite imminent lawless action. Burning the American flag. Burning a cross. Displaying the swastika where it will be seen by Holocaust survivors. Picketing a dead soldier’s funeral to protest homosexuality. Each of these noxious or inflammatory forms of expression has been explicitly protected by the U.S. Supreme Court.
There are many defenders of this broad, permissive approach. Conor Friedersdorf writing in the Atlantic represents this position well when he writes that a “broad reading of the First Amendment is the framework that best protects ethnic and religious minority groups.” He says that if a precedent is set now for restricting the speech of right-wing hate groups like neo-Nazis and the KKK, the same precedent can be used in the future to muzzle street activists, Black Lives Matter demonstrators, and Muslims.
This is essentially the argument that Neier was making forty years ago in that ACLU debate, and until very recently, this was my position as well.
The melee in Charlottesville five years ago changed my mind.
When I read the first reports out of Charlottesville, my mind immediately went to Skokie to find a reference point, but very quickly, I could see a chasm opening up between these two events. Skokie had been a series of bloodless legal maneuvers, injunctions, and court rulings that cascaded up to the highest court in the land. Charlottesville, on the other hand, was all-out war. There had been a great battle fought in this Virginia town, and I knew instinctively that I was required to choose a side.
I did so without hesitation.
A few weeks after Charlottesville, I was discussing the event with a friend. She too was upset by the news reports of armed protesters and phalanxes of shield-bearing white supremacists, but she also thought that the Antifa counter-demonstrators who hurled full water bottles at the fascists had “gone too far” and “should have remained nonviolent.”
“There is a right way and a wrong way to protest,” she said.
“If I was there,” I replied. “I might have thrown a water bottle at the Nazis.”
We were both surprised to hear these words coming from me. This wasn’t bluster on my part; it was a genuine sentiment, and a brand new one for me.
What changed? For most of my life, I have embraced a “marketplace of ideas” approach to free speech. I believed that we should always keep open a neutral space where ideas can compete, confident that the best ideas will rise to the top. I also believed that this space must have a firewall against violence, intimidation, and incivility, and that it is the government’s job to defend this wall through laws, permits, and ordinances, and if necessary, by erecting actual barricades to protect speakers from violence or to keep protesters from tearing each other apart.
Charlottesville bulldozed this ideal, smashing it to pieces. I saw a town invaded by right wing extremists and hatemongers, some of them armed with guns, in a forceful display of intimidation. The residents were angry and terrified, and apparently no authority—local, state, or federal—could prevent this blatant spectacle of fascism from taking place. The town issued a permit for the rally to be held in a small park near the town square and then tried to move the event to a larger park a mile away. The ACLU sued on behalf of the protestors and a Federal judge blocked the rally from being moved. Under these circumstances, the police either couldn’t or wouldn’t keep the protesters and counter protesters from clashing. In the ensuing melee, any sense of a neutral space for public discourse evaporated, leaving two armies to fight it out in the streets.
Many Americans are uncomfortable with this kind of violence. It pricks at our collective desire for orderly streets and tolerant discourse and a non-confrontational experience of daily life. It reminds us of the political unrest and violence of the 1960s and early 1970s. It appears to be evidence that the social order is failing. Nevertheless, I cannot blame the people who showed up in Charlottesville to confront the fascists. In fact, their actions are consistent with a long tradition of Americans forcefully standing up to evil when the state fails to do so. Striking workers. Abolitionists. Anti-Vietnam demonstrators. The Black Panthers. They have all gone to the barricades and into the streets.
I now believe that an overly optimistic faith in the “marketplace” approach is naïve and even dangerous. Fascism is a violent ideology and when expressed openly and forcefully, as it was in Charlottesville, it usually provokes violence. With hindsight, it seems delusional to expect that the marchers would be nonviolent or that the people of Charlottesville would stand by calmly watching this hate parade file into their town. Similarly, it feels naïve to expect that any large rally of white supremacists and Nazis in modern-day America would ever be a peaceful event.
Should we then ban such events going forward? Is a kind of limited censorship in these cases allowable? Acceptable? Constitutional?
I do not have ready answers to these questions, but I do know that my lack of certainty is itself significant. Before Charlottesville, I would have answered a confident “no” to each question. Now I am at least willing to entertain the idea that our current mode of interpreting the First Amendment is insufficient to the task of confronting the current resurgence of fascism and white supremacy in America.
I realize now that it was easy for the fourteen-year-old version of me to lionize Goldberger and the ACLU. Their faith is pure, and boys are attracted to black and white morality. My generation grew up normalized to the idea that the courts should defend free speech at the extreme margins. There was the Skokie case in 1977, and then in 1989, Texas v Johnson, which upheld the right of Americans to burn the American flag. In 1992, R.A.V. v City of St. Paul, the Supreme Court overturned a teenager’s conviction for burning a cross on a neighbor’s front yard because the city statute focused on the ideas conveyed by the hate speech rather than on inciting violence. We were taught that people like David Goldberger were heroes for defending the rights of people like this. In the decades since, however, I have learned a harder truth. History is messy, and it matters, a lot.
It is not possible, for instance, for me to forget that more than 60 million people died in the last great war against fascism, including 407,300 Americans. Sixteen million American men and women served in that war, including my own grandfather. Likewise, it is not possible for many African Americans to forget that the Sons of the South are the direct ideological descendants of people who terrorized and lynched their grandparents and great grandparents. I have always believed that fascists and white supremacists are evil. What has changed is my willingness to blithely abstract their right to propagandize, organize, and recruit in my country under the banner and protection of the U.S. Constitution.
I also realize now that false equivalencies and moral myopia are natural byproducts of our free speech laws. President Trump was criticized for making a false equivalency of “many sides” committing violence in Charlottesville. Without excusing him (he is morally bankrupt) we might consider that our free speech laws actually paved the way for his response, just as it created the conditions for my friend to fret over Antifa’s tactics even when presented with clear evidence of the far greater threat coming from the other side.
Moral myopia, however, is the far more dangerous consequence. The same First Amendment that protects flag burning, cross burning, picketing the dead soldier’s funeral, and displaying the swastika in front of Holocaust survivors also clears space in the Agora for David Duke and Richard Spencer and some young white guy wearing a black Nazi-era German motorcycle helmet and pounding a baseball bat on a black plastic battle shield. Try as we may to moralize about how some people deserve to be standing in the national town square while others do not, the fact that we allow fascists their fifteen minutes on that stage elevates their stature and provides them with a venue for recruiting that we would never offer to, say, al Quaeda or ISIS. They get to stand alongside our greatest orators, leaders, and moral exemplars. Our free speech laws thus unwittingly sanction a form of cultural reanimation that resurrects the ideological corpses of mortal enemies we once fought and defeated on the battlefield. Only in a country that easily forgets its history is such a spectacle possible.
To be clear, I am not abandoning the First Amendment, but I do now reject the demand that because of it, I must defend the rights of people who are sworn enemies of the tolerant, multiethnic society I want my daughter to grow up in. I no longer share that vaunted, quasi-utopian ideal of total free speech in which all Americans are depicted as sharing in a collective responsibility to protect our cherished freedoms. Only in such an airy paradise is it possible to suggest that African Americans should stand with Klansmen under the same umbrella of legal protections for free speech.
Defending the free speech rights of Nazis and white supremacists is not a rational response to evil; it is a leap of faith based on an article of faith, the First Amendment. On the other hand, confronting Nazis and the Klan in the streets is a rational response, given the history of our two most costly and consequential wars. When the fascists show up in your town, you fight them. For all of their shortcomings, the anarchists of Antifa understand the threat of this fascist revival in our midst better than most of our politicians, pundits, and prognosticators. They know what many Americans also know, that fighting fascism—actually fighting it rather than hoping that it will go away on its own—is still both common sense and morally correct.