Free-speech debate: How does a tolerant society defend its values?

The events of the ‘Unite the Right’ march in Charlottesville, Va., may have prompted a reappraisal of the nation’s approach to free speech.

Is there a point at which it becomes dangerous for democratic societies to tolerate intolerant speech and action? That’s an old question in political philosophy that’s relevant again today as resurgent neo-Nazi and white supremacist groups turn up the volume on efforts to publicize messages of hate in the United States.

The specific fear, of course, is that a tolerant government might be toppled via its own virtue. An illiberal faction could use freedom to attract adherents, rise to power, and then crush dissent. This has happened in real life. See: Germany, Adolf Hitler, 1933.

But veering too far in the other direction has its own risks. There’s a line at which a liberal nation that restricts angry and/or unpopular opinions becomes the intolerant oppressor it is trying to oppose.

This dilemma faces official and citizen groups alike. It’s trickier than it might seem, given the First Amendment to the Constitution and America’s general heritage. Consider the American Civil Liberties Union, which earlier this month defended the right of white supremacists to march in Charlottesville, Va. The ACLU leadership faced a blistering backlash from many members who felt that some speech might indeed be too offensive to protect.

“Where is the line between protected speech and that which is unacceptable in public discourse?” says Gordon Coonfield, an associate professor of communications at Villanova University in Philadelphia. “This is a question that we as a society have struggled with – not always to our credit – and we must continue the struggle.”

A reappraisal of free speech

The events of the “Unite the Right” march in Charlottesville are the context for this reappraisal of the nation’s approach to free speech. White supremacists feel emboldened by the national political response to their rally to protect a Robert E. Lee statue, according to posts on far-right websites. Rightly or wrongly, adherents of the so-called “alt-right” see President Trump’s assertion that “both sides” are to blame for the violence that led to the killing of counter protester Heather Heyer as a nod towards white identity politics.

“Thank you President Trump for your honesty & courage to tell the truth about [Charlottesville],” tweeted white nationalist and former Ku Klux Klan leader David Duke following Mr. Trump’s statements.

This increased confidence on the far right has put some historic advocates of free speech on the defensive. The ACLU has long protected the rights of Americans to say abhorrent things. In 1977, the group famously fought to allow neo-Nazis to march through Skokie, Ill., a Chicago suburb then home to many Holocaust survivors.

Yet Charlottesville proved a march too far for the group, in at least one respect. Following protests from members, the ACLU decided it would no longer represent armed hate groups as a matter of course. The sight of neo-Nazis openly carrying assault weapons was just too chilling.

ACLU leaders said they would now screen clients more closely for the possibility of violence at rallies, as the Monitor’s Henry Gass reported last week. The shifting legal landscape around gun rights may mean that a protest with armed participants cannot be treated, for First Amendment purposes, the same as a protest without firearms.

The First Amendment protects free speech, but in the same sentence, also says it protects the rights of the people “peaceably” to assemble. If marchers have assault rifles slung around their shoulders, are they acting “peaceably”?

“If people are gathering armed to the hilt and hoping for violence, I think the ACLU would be doing damage to our free-speech rights in the long term [by providing them legal counsel],” said ACLU senior staff attorney Lee Rowland to the Associated Press.

‘Paradox of tolerance’

The extent to which a tolerant government should tolerate intolerance is a venerable academic problem.

One famous answer to this question was provided by the political philosopher Karl Popper in his 1945 work “The Open Society and its Enemies.” Popper described something he called the “paradox of tolerance”: unlimited tolerance carries the seeds of its own destruction. If a tolerant society isn’t prepared to defend itself against intolerant factions, it will be destroyed, and tolerance with it.

In essence, he argued that a free nation should not necessarily put up with hate speech. As long as hateful words can be countered by rational argument and public opinion, it’s better to let them be, Popper wrote. But in the end a tolerant nation should reserve the right to suppress speech that threatens its existence, even if it’s necessary to use force to do so.

“We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant,” Popper concluded.

This theory would not necessarily mean that neo-Nazi and white supremacist marches and rallies in today’s US should be banned. Popper did not argue that people should be protected from speech that makes them uncomfortable or angry. He talked about suppression in the face of “fists and pistols” – actual violence, or the threat thereof.

The ACLU appears to have decided, in essence, that the guns carried by participants in the “Unite the Right” Charlottesville rally meet these criteria. And radical leftist groups, such as Antifa, have felt that they need to provide a counterthreat to the rise of the far right – though critics say they have fomented violence themselves, not countered it.

But in general neo-Nazis are not an important voice in the conversation of American political ideas. The First Amendment protects their most extreme statements as free speech. Just because they’re legal, however, doesn’t mean they’re culturally acceptable today. 

“The parameters of public discourse in the United States are very broad, as they should be, but they exclude those who attack any racial, religious, ethnic, or gendered group as a group or any individual as a member of a group,” says Jerald Podair, professor of history and American studies at Lawrence University in Appleton, Wisc.

“ ‘I hate X, that dirty fascist,’ is vulgar but within our parameters. ‘I hate X, that dirty Jew’, is not,” Professor Podair says, via email.

When ‘good guys’ get to control free expression

Banning white supremacist hate speech in the name of protecting tolerance would also raise classic First Amendment issues, according to other experts.

Freedom of speech is the bedrock principle upon which all other Constitutional principles rest, says conservative cultural and political writer Donna Carol Voss. That’s best protected by a dispassionate standard of speech overseen by the Supreme Court, Ms. Voss argues. Once flawed humans gain the power to determine whom to silence, there will be no reason why they themselves can’t be silenced at another time by another group of people with other ideas.

“The real danger of Charlottesville is being lulled into a false sense of complacency that the world is divided into good guys and bad guys – that we can always tell them apart. And those who define themselves as ‘good guys’ get to control the free expression of those they define as ‘bad guys,’ ” says Voss. “Charlottesville shouldn’t change a thing.”

In the end, however, Charlottesville marchers who chanted, “Jews will not replace us,” in a public forum clearly transgressed acceptable free-speech boundaries, says Kel Kelly, founder of “Humanity Rises,” an organization focused on helping refugees, and of the Boston-based PR firm Kel & Partners.

But what matters is how society responds, says Ms. Kelly.

“The real art of meaningful discussion and changing hearts and minds is not about who is yelling the loudest or getting the most attention, rather it is about who listens, understands, and changes their perspective or actions,” says Kelly.