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The lessons of Charlottesville: Must we be tolerant of the intolerant?

REUTERS/Joshua Roberts
We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak.

Does the First Amendment require us to be tolerant of the intolerant? The simple answer in the United States is yes, but only up to the point of violence, and only up to the point of where it involves government efforts to suppress speech. Beyond that, tolerance is a social issue, and that is perhaps where the real danger lies in terms of threats to freedom and free speech.

schultz portrait
David Schultz

Charlottesville was ugly in so many ways. But the central question now is: Need we tolerate the intolerant? There is the legal answer, and the social answer. Legally, deciding the limits of free speech has been perhaps one of the most profound and vexing questions in American law. Do we have a right to advocate hate? The overthrowing of the government? Should we be allowed to burn crosses, flags, or draft cards? Is sexually charged language or images discrimination or harassment? Can we, as Supreme Court Justice Oliver Wendell Holmes Jr., once mused, falsely cry fire in a crowded theater, and is it permissible for political candidates to lie? How far can our words go before they cross a line? When has the line been crossed from “names will never hurt me” to where they act as “sticks and stones?”

The line is defined

The Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), a case involving hooded and armed KKK members standing around a burning cross advocating potentially violent action, defined the line. Citing a litany of precedents, it held that:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Speech is speech, and it is protected until such time as it advocates imminent lawlessness that is likely or imminently to occur. In Brandenburg, the court ruled the KKK did not cross the line and its advocacy was protected speech. Many might be surprised by this decision, but the court drew a tough line in the sand: Free speech is sacred and the government ought not to censor or prosecute it, no matter how ugly and hateful, unless it crosses the line into imminent violence. That line might have been crossed in Charlottesville with the violence.

Government is not the arbiter of truth

The price to pay for freedom is that others have a right to say hurtful things or things we do not want to hear, and the government should not be the arbiter of what it truth. As Justice Robert Jackson stated it well in West Virginia v. Barnette, 319 U.S. 624 (1943):

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

The First Amendment prevents the government from suppressing free speech. But what about society? The First Amendment does not apply to private actors or public opinion. Private employers, internet hosts, and private individuals do not have to follow the First Amendment. I am free to shun ideas I dislike and to disapprove of them and those who hold them. Public opinion is the ruling sentiment in the U.S., for good and bad. At its best, public opinion and majority rule can do great things such as advocate for civil rights and equality, but at its worst public opinion is a destructive, censoring tool. Fifty percent plus one of the population at one time sustained slavery, denied women the right to vote, and prevented same-sex couples from marrying.

Complex machinery

James Madison, the principal architect of the Constitution and the Bill of Rights, as described in Federalist Paper No. 10, feared the power of the majority faction to act “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Alexis de Tocqueville, in his famous "Democracy in America," called this "the problem of the tyranny of the majority.” It is the problem of how do we balance majority rights with minority rule. The Constitution, and the Bill of Rights, are complex machinery that help to manage intolerance, abuse of power, and freedom by restraining the government. At the end of the day, people can believe what they want, including hurtful and discriminatory things, but the Constitution and Bill of Rights stand as guardians against that. Again to quote Justice Jackson in Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Individuals can believe what they want, but they have no right to have their personal prejudicial beliefs translated into public policy.

'Fatalism of the multitude'

Yet James Bryce’s "American Commonwealth" saw something even more fearful than a tyranny of the majority: the fatalism of the multitude.

The tendency to acquiescence and submission, this sense of insignificance of individual effort, the belief that the affairs of men are swayed by large forces whose movement may be studied but cannot be turned, I have ventured to call the Fatalism of the Multitude. ... But the fatalistic attitude I have been seeking to describe does not imply any exercise of the power of the majority at all. In the fatalism of the multitude there is neither legal not moral compulsion; there is merely a loss of resisting power.

Elisabeth Noelle-Neumann’s "The Spiral of Silence" goes even further, describing the power of public opinion to encourage people to self-silence themselves. The problem Madison, deTocqueville, Bryce, and Noelle-Neumann all noted was the suffocating power of public opinion and intolerance to silence dissenters, the minority, or those who have contrarian opinions. 

We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak. These latter groups have a right to believe what they want, and the rest of us should do our best to educate and convince them of the error of their ways and urge them to change their mind. However, simply suppressing their speech does not eliminate hate, fear, and prejudice, and the tools we use today to censor our enemies can another day be used against us.

David Schultz is a Hamline University professor of political science. His latest book is “Presidential Swing States: Why Only Ten Matter.”  He blogs at Schultz's Take, where a version of this piece first appeared.   

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Comments (19)

A couple of thoughts.. Fist,

A couple of thoughts..

Fist, it is clear that people want to express their opinion without experiencing the consequences of their speech--"you shouldn't fire me because I was parading with neo Nazis screaming support for racist beliefs. etc.".

Second, the people who are demonstrating for fascist, discriminatory beliefs while claiming their right to free-expression are actually in the process of campaigning to remove your rights to free expression. That's a mind-bending proposition, but that is the process by which totalitarians gain power.

questions

One wonders if we have to tolerate awful, Un-American ,evil and hateful groups like the KKK, White and supremacist nazis and also groups like ANTIFA who will do whatever means necessary to destroy these groups and anyone who they disagree with. If a conservative speaker enters a college campus to speak, should they be shut down due to violent goon squad antifa soldiers who harm property, attack police and anyone else in their way? The Seattle (most liberal city in the US?) Police stood up to them last week, Charlottesville did not. It is time to disavow both groups as destructive, evil haters not worthy of our Country..

Wrong

Before writing, you should actually learn about what Antifa did in Charlottlesville. These people were heroes. Racist Nazi scum came to hurt and harass people, and Antifa showed up to stop them and protect people. Do not conflate the cowardly, un-American traitors with the people who stood up to them. Antifa - at least in Charlottesville - were true American patriots.

http://www.slate.com/articles/news_and_politics/politics/2017/08/what_th...

The Lessons of Charlottesville

While I think Professor Schultz has done a good job summarizing the issues associated with freedom of speech and while I agree with much of what he has said, I would remind him and other readers of Karl Popper's "paradox of tolerance." Poppeer posited the proposition that the more we tolerate intolerance, the more tolerance is threatened.

Footnote

We need to distinguish between legal tolerance and cultural tolerance. Legal tolerance gives the hate-speakers a pass. That does not mean we as citizens should just stand by and say nothing. As Popper himself said, "I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise."

We can tolerate the right to be intolerant, without condoning the intolerance itself.

The neo-Nazi white

The neo-Nazi white supremacists/nationalists who gathered at Charlottesville came "armed" for confrontation, armed for any potential violence they might engender withtheir so-called syjbolic speech against all non-whites. Shields, helmets, sticks, many guns. Those who met them to protest their gathering were not so armed, although a tiny portion of anti-fascist activists were present and mixed the protest's peacefulness with a matching violence.

The big thing: if there is no counter-protest to Neo-Nazi ugliness in speech and agenda, then society implicitly approves their violence, with silence. Therefore, it is our duty to show up and counter-protest every time the ultra-right white nationalists gather to spew hatred on us all.

Not deny them speech. But throw more speech--our more tolerant speech--at them. It is the police's job to make sure nobody physically attacks anybody. The Charlottesville cops did not do that, unfortunately.

Our current president does not see these differences. Not a man for nuance of any sort

Sadly, as the video of the

Sadly, as the video of the incident clearly shows, the woman who was murdered in Charlottesville was marching with a BLM group that was heavily armed with sticks, baseball bats and pipes.

There is also recordings of several violent clashes throughout the day involving "anti-fascist" protesters and neo-Nazis. They all came equipped to fight.

Does that justify an ISIS style car attack on pedestrians? Of course not. But it does prove the truth in the addage that violence begets violence.

You are right in that it is the job of the police to keep opposing sides seperated, and to arrest people the commit assaults. The police in Charlottesville failed completely in that work. Why?

The police in Phoenix provided a model of how to deal with violent protesters. Nip it in the bud.

I have seen reports from some

I have seen reports from some of the Christian and Jewish clergy who were in Charlottesville to protest the Neo Nazis, saying that the anti-fascists (who are not an organized group, by the way) protected them when the Neo Nazis attacked them.

In other words, the Neo Nazis initiated the violence, so if Heather Heyer's group was walking around with weapons the next day (something I have not seen in video footage myself, so I'm taking Mr. Senker's word for it), it was for self-defense in the case of another attack.

Hi Karen. I did a quick

Hi Karen. I did a quick search for "clergy attacked at Charlottesville", and this is the only thing I could find

https://jewschool.com/2017/08/80174/charlottesville-torahfortheresistance/

"My face is looking to my left with a mix of fear, anger, and deep concern. This picture was taken after someone spilled their coffee on a white supremacist, for which that white supremacist then punched him. They started a brawl."

He doesnt say who "they" are, but I think it's safe to assume it wasn't the clergy. While I don't blame whoever "spilled" the coffee on the Nazi, once again, violence begets violence. And "spilling" coffee on an antagonist is an odd way to protect others.

I keep hearing, from the left, that antifa is not an organized group, and I'm confused. Is that supposed to excuse them somehow? How is their lack of an org chart relevent? I don't get it.

Charlottesville

My simple question is what were the other 363 million US citizens doing while about 1500 people were protesting in Charlottesville? It seems to me that protestors although less than 1% of the population in the US seem to be getting much more attention from the news than the other 363 million people of Democrats, Republicans, Independents, Green party, Libertarians, and other political parties in the US combined are getting. I don't know how many protestors there are in the US, but one figure I saw was less than .02%. I don't know if that is accurate, but it is my opinion that a small number of racists, white supremecists, black lives matter, antifa and others seem to be getting an awful lot of press. Maybe what we should do is pay attention to the other over 300 million people who are peaceably talking about there differences rather than rioting in the streets.

Lessons

When the protesters are Nazis, it's important to speak up and shine a light into their sewer. When an immoral president defends Nazis, every good and patriotic American needs to pay attention and call him out.

I guess no one is interested

I guess no one is interested in how long so-and-so spent watching TV on their sofa today. Or if their workday varied at all from the day before.

Activists get the attention because they're out there, sowing up to show a point of view..

it's good that some people are activists, out there, speaking up

Amen!!

thank you!

Violence

A problem we have is that despite what we tell people a lot, the fact is, votes don't matter. We have a minority president, with unprecedented unpopular numbers. At a time when people complain about low voter turnout, tens of millions of votes were effectively thrown away. If the electoral system fails us, what are the alternatives?

question?

Mr. Schultz,

Is it possible to have "peaceful protests" and at the same time "unlawful protests?"

Yes

A peaceful protest might be unlawful if it was carried out in violation of a valid time-place-manner restriction. Thus, even peaceful picketing at the home of a physician who performs abortions is unlawful if it is done in violation of a valid local ordinance limiting picketing in residential areas.

Yes

It's called civil disobedience.

Yeah...

I'm not sure there has been much confusion about the "right" to speak, I think most Americans recognize the fact that Nazis and KKK folks have that right. The question is how to respond to speech we disagree with or consider dangerous. Most people would rather not get into a violent confrontation, but they believe at some point a confrontation of some kind is necessary and appropriate. Some people are more comfortable with confrontation than others, but many people realize that at some point responsible morality and citizenship compels us to respond rather merely observe while others exercise their rights.

Our Constitution clearly isn't intended to create any kind of protective "bubble" around speakers wherein their speech, no matter how toxic, cannot provoke responses from fellow citizens. Speech is a shared right, not a reserved right, and civilization is a shared responsibility.

These confrontations, while not pretty, are necessary at this point. We cannot surrender the streets and microphones to intolerance, nor can we merely attempt to ignore threats of violence and persecution.

You know

This reminds me of a WWII conscientious objector: He basically said there are evil people in the world, totally convinced that they must kill him, he was convinced he couldn't change their mind, so, he said you can put me on that battle field and I will just be a casualty of war, because based on my beliefs I am not going to shoot them.

Moral of the story, as in the untouchables, a derivative of "don't bring a knife to a gun fight" We had lots of peaceful marches during Vietnam, and what happened, they got gunned down, or gassed, same said for the civil rights movement, These right wing-nuts are advocating violence, death and destruction of folks they hate, are we going to change their minds? I think not. I would not advocate giving them 1 molecule of oxygen more than the law requires, and as the boy scouts say "Be prepared" . .