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.
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.
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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