Notes from Charlottesville: Free Speech is Not an Absolute Right

by Ralph Seliger

IN RECENT WEEKS, the American Civil Liberties Union (ACLU) has drawn criticism for helping the “alt-right” get its permit to demonstrate in Charlottesville. After the fact, the ACLU backtracked, declaring that if it had known in advance that many of these white supremacists would be coming armed, its position would have been different. Since Virginia is an “open carry” state that allows people to appear armed in public, the ACLU should really have known better, but my objections to the organization’s nearly absolutist position on free speech go further.

People should have the right to express their ideas, however vile these ideas might be. This includes the thoughts of the insultingly clownish Milo Yiannopoulos, the nasty author-provocateur Ann Coulter, and the conservative social science theorist Charles Murray — all of whom have faced disruption from leftwing protesters at university venues.

But society also has the right to prohibit actions that are likely to result in violence or are designed to harm people, either physically or emotionally. In retrospect, the better course in Charlottesville would have been either to deny the permit for the alt-right rally, or to have posted a larger and more assertive police presence to keep demonstrators and counter-demonstrators apart. Of course, any use of police power to defend against harmful intent must be exercised cautiously; the slippery slope concern is understandable in this connection.

SIMILARLY, THE 1977-78 Nazi petition to march through Skokie, Illinois, with that community’s large population of Holocaust survivors, is a model of how NOT to handle such an exercise in free speech. Even though the event itself was a bust, with the Nazis eventually demonstrating elsewhere when promised an overwhelmingly hostile local reception, I fault the ACLU for defending their petition, because the march was meant to harm the folks of Skokie (at least emotionally) and would probably have resulted in violence. But I would, on the other hand, have defended the Nazis’ right to assemble in a more neutral, innocuous space.

Implementing restrictions on free speech always demands the exercise of judgment and discretion. I am trying to thread a clear line in citing the Skokie case, which is that the exercise of free speech should be constrained only if such speech is threatening likely violence or mental trauma — such as emotionally abusing people with psychic scars, like the Holocaust survivors in Skokie. A number of analogous situations come to mind, one being an anti-gay demonstration in an urban neighborhood known to be heavily populated by LGBTQ people. Prohibiting the intentional infliction of emotional distress, with our courts as the ultimate arbiter, is a reasonable exception to First Amendment protections.

I also think the Supreme Court was wrong in 2011 when, in Snyder v. Phelps, it upheld the right of the racist, homophobic, and antisemitic Westboro Baptist Church to demonstrate in proximity to the funerals of soldiers killed in America’s ongoing Middle East wars. Such exercise of free speech was meant in a very direct manner to inflict pain upon the bereaved, who were within ear-shot and eye-shot of hateful messages that vilely celebrated the deaths of loved ones being laid to rest.

Still, applying this principle can be tricky. I am relating here to angry demonstrators posturing menacingly in the public square, not to mere words or images published in print or online. I would not, for example, endorse the position that Salman Rushdie’s The Satanic Verses or Charlie Hebdo’s cartoons of the Prophet Mohammad should have been banned from publication due to the emotional distress they (unfortunately) caused to traditional Muslims.

MY CONSIDERATION OF this issue was stimulated by a discussion at The Third Narrative email listserv. Most of the participants are scholars and academics, including a number of law professors. Two legal scholars on the listserv have permitted me to quote them here.

An extended email thread began with Professor David Abraham of the University of Miami School of Law linking to an article on the philosopher Karl Popper. In his 1945 book, The Open Society and Its Enemies, Popper argued that there exists a “paradox of tolerance” in liberal societies, which are vulnerable to intolerant movements precisely because of their tolerance. Although Popper did not advocate the complete denial of speech rights for fascists and other enemies of liberal society if they could be contained otherwise, he warned of the paradox’s logical outcome: “If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.”

Prof. Abraham may be somewhat more alarmist than I am, but I can appreciate his sense of urgency:

As I get older I become less of an absolutist. The absolutist position . . . was predicated on a high degree of background consensus and internal peace. . . . [T]he German/Austrian position [curtailing free speech protections for fascists – RS] is based on a very different experience, one that recognizes that democracies have to defend themselves, and they don’t always win. . . .

Who would have thought that we would have a fascistic instigator for president in the 21st century? The mob in Charlottesville (where it is legal to march around with AKs [assault rifles – RS]) is not about gaining respect in a marketplace of ideas (except for tactical purposes); it is about destroying the democratic and egalitarian system.

Fascists cannot be allowed to gain a foothold, particularly not now that the US is a less consensual society. We know that once they reach 30% or so, they will win. We must take them down completely in the next two elections, but they are not to be treated as ordinary players in the meantime.

I am essentially in agreement with Alan Weisbard, an emeritus professor of law at the University of Wisconsin:

I found the decision on Westboro Baptist protests at military funerals to be an occasion for sadness. Absent First Amendment protection, I think this would constitute actionable intentional infliction of emotional distress. I do not think the First Amendment should insulate protesters from liability in these circumstances. [As] for Skokie, . . . I think our democracy and commitment to free expression would have survived a court-mandated relocation of the proposed march to elsewhere in the Chicago area . . .

The dangers of a slippery slope, while they exist, should not be exaggerated. . . . I haven’t seen much evidence that drawing lines is beyond the skills of our judiciary.

Prof. Weisbard goes on to cite various Western democracies that are fundamentally no less democratic for making some limitations on free expression when it comes to Holocaust denial or other manifestations that may be characterized as hate speech. I don’t know that I would want the U.S. to go as far as Canada and some European countries in this regard, but I can commend the sensitivity to recent history that would motivate Germany to do so.

Still, Weisbard and I tend to agree that demonstrations intending to inflict emotional harm may be prohibited, or at least challenged in the courts. My main concern, however, post-Charlottesville, more closely resembles Prof. Abraham’s worry, which is less about speech than the actions of rightwing extremists in the streets, emboldened by Trump’s incumbency to advance their hateful agenda by force or intimidation, under cover of the First Amendment.