The Case Against Free Speech

chapter one

THE LINE

THE VIOLENCE OF AUGUST 12, 2017, IN CHARLOTTESVILLE, VIRGINIA, which we’ve come to call just Charlottesville—the white nationalist rally that ended with leftist organizer Heather Heyer dead, run over by James Alex Fields Jr. in his gray Dodge Challenger, and dozens injured—allowed us to forget what the rally was originally about: free speech. That’s how members of the alt-right and neo-Nazi groups that had organized the march billed it. In many of the promotional materials before the event, the rally was referred to as the “Unite the Right Free Speech March,” or a “free speech rally.” And the now-infamous rally was actually the third in a series staged by different white nationalist groups, though the first two brought out fewer people and drew less media attention. Three months earlier about one hundred opponents of a plan to remove a statue of Robert E. Lee from a public park at the center of Charlottesville gathered at the statue to protest. Then, in July, about fifty members of the Ku Klux Klan held another rally at the statue. Scuffles between them and approximately 1,000 counterprotesters led to two dozen arrests.¹ At each rally the vast majority of protesters were from far-right and blatantly white supremacist groups, though until August 12 most insisted they had come to protect free speech. If the government could remove a statue of Robert E. Lee, they argued, what else could it do?

“In response to the Alt-Right’s peaceful demonstration in support of the Lee Monument on May 13th, the City of Charlottesville and roving mobs of antifa have cracked down on the First Amendment rights of conservatives and right wing activists,” one flyer for the August 12 rally read, playing up the idea that their free speech was being impinged.² “They have threatened our families, harassed our employers and tried to drive us from public spaces with threats of intimidation. We are not afraid. You will not divide us.”

By the time I arrived in Charlottesville, at around 8:30 a.m. on August 12, the organizers seemed to have dropped all pretense that they cared about free speech. They were ready for battle. There were no free speech flyers to be found. The messaging had switched from protecting free speech and not erasing US history to blatant racism and xenophobia. Hundreds of neo-Nazis carrying shields, militiamen armed with semi-automatic rifles, and neatly dressed members of more “respectable” far-right groups like the Proud Boys stood ready to fight. And thousands of counterprotesters were there either to drown them out or run them out of town. By the end of the rally, after I and hundreds of others ran from that gray Dodge Challenger, after I saw Heather Heyer’s lifeless body being lifted into an ambulance and sat in shock, smoking a cigarette with a friend on a curb as police in armored vehicles rushed past us, I thought, How could we have been so naïve? The violence, in retrospect, seemed inevitable. How could it not end like this?

Charlottesville, it turned out, was a real-time exercise in free speech politics. For decades, we as a nation have debated the merits of allowing even the most heinous of opinions to be voiced freely. This has been the extent of our free speech debate—whether Nazis, and whoever else the general public finds detestable at the time, should be able to say what they want, without consequence. But the question of whether a neo-Nazi in Charlottesville should be able to chant, “Jews will not replace us” and tell black people that they do not belong in this country is superficial. It ignores everything that got us to that point. Why was a Nazi there in the first place? Why does he hate Jews and black people so much? Why are the police and courts willing to protect him? Those, I learned in the course of reporting this book, are more important questions that are much harder to answer. What got us to Charlottesville is the entire history of racism and organized right-wing political terrorism in this country. It is what, over the course of hundreds of years, we have decided is acceptable or unacceptable as speech, or protest, or art. What we deem worthy of protection, and what we are willing to override to protect other rights.

The history of free speech in this country can also be thought of as a history of how we define action, and particularly how we define violence. Where we put those lines—between speech and acceptable action, acceptable action and violence—depends completely on political context. Until Charlottesville (and perhaps afterward too), many understood that the line falls at something like: anything up until actual physical bodily harm is not violence but protected speech, and anything after that is. But that line is too uncomplicated because it ignores power and defines violence too narrowly. Something I write on a piece of paper does not become law, though the same action performed by a lawmaker can affect the lives of millions—a bill stripping health care from millions, for example, is an example of violence that we currently consider acceptable in our democracy. When you add a racial, gender, and economic analysis to that line, you get a different conceptualization of free speech, suggesting not that speech is bad, but that the line is defined unevenly.

The ability to speak without consequence is significantly more limited for someone living in poverty and at risk of police brutality than for someone who can broadcast their speech on television and radio, or from a podium on college campuses. What we’ve seen in the past few years is leftists trying to push the line. If a conservative with a large media platform—say, Milo Yiannopoulos in his heyday—is speaking at a college campus, shutting him down is not a violation of free speech in many students’ view but an evening of the playing field, allowing those with much less power than Yiannopoulos (trans students and students of color, for example), an equal say. The same was true in Charlottesville: for leftists there, limiting the speech of Nazis was not understood as silencing them because historically racists have had a much larger platform to speak from than oppressed peoples have.

For free speech absolutists, this argument will fall flat because they believe free speech should be completely unrestrained no matter what. But what we rarely acknowledge is that in every case concerning free speech, we are already starting from a severely restricted baseline. There are countless legal limits on free speech that we rarely debate.

For example, we ask, “Should a Nazi be able to speak?” But we rarely question where a Nazi should be able to speak because we’ve already concluded that free speech rights normally do not exist on someone’s private property (if a Nazi broke into my house to lecture me, he would not only not have First Amendment rights; in many states, I could legally kill him). We have decided that many actions are indeed speech, even though they are blatantly not just speech: writing, protest, and art, for example, all involve actions that go far beyond speaking, and are generally allowed. But we’ve decided that other actions, even those involving the same processes, go beyond speech: writing that advocates killing the president, or a protest that blocks the flow of vital emergency services, for example. You cannot harm someone without their permission for the sake of art. The First Amendment already has many inborn limits.

Those are perhaps some obvious limits, but they prove that what we think of as free speech is already free-ish speech. It’s free speech that we have decided does not trump other things we think are more important (the right to private property, or the right not to be murdered). We take these limitations with apparent ease—they do not light up the opinion columns of many newspapers.

When we debate free speech, we are not debating whether we like free speech, because we’ve never really had free speech. We’re debating where the line is, and who gets to hold the line in place or move it. We’ve settled, for now, on some limits to free speech, but we haven’t yet decided that, for example, the right to walk down the street without being yelled at by a Nazi is as important as the right to private property. That line is in constant flux. Not only flux; it’s constantly embattled: millions of dollars get spent defining that line each year by super PACs and other political groups and by nonprofits like the ACLU. Millions more get spent by corporations to keep the definition of free speech from encroaching on intellectual property (if your free speech meant you could set up a company called Google, that would be a problem for Google). Countless hours and huge sums of money go into defining and protecting the currently accepted lines of free speech.

With fewer column inches dedicated to it than to the hemming and hawing over one rally at a college campus, the Supreme Court decided one of the largest free speech fights of the last few decades in 2018, when it ruled that public sector unions couldn’t force those who didn’t want to join the union to pay fees the union uses to bargain for employees’ contracts. Janus v. AFSCME was a huge blow to unions, which will now have to convince each and every member to pay “agency fees” instead of collecting them automatically. And the case was decided on free speech grounds. Justice Samuel Alito said in his opinion that “fundamental free speech rights are at stake,” and that no interest of unions outweighs “the perpetuation of the free speech violations.”³ In other words, being compelled to pay fees by a union is the same thing as forced speech. But forty years earlier, in Abood v. Detroit Board of Education, the Supreme Court had unanimously decided the opposite when a public employee came to the court with the same argument.⁴ It would be unfathomable to imagine the Court deciding something similar in regards to private property (“No interest of homeownership outweighs the right of someone to come into your house and yell at you”), yet in four decades the Court, reflecting our politics and culture, had shifted so vastly that free speech now outweighed the financial security of workers. And that did not happen naturally or inevitably, but because conservative billionaires had poured large sums of money into an anti-union fight to define free speech in such a way.

We’ve been arguing about free speech, but we haven’t been minding the line, or paying attention to who is influencing it. Janus was just a particularly obvious example of what all free speech fights are about: who has the power, the money, the influence to control that line, and who does not.

Charlottesville too was an exercise in line-pushing. Though they were largely represented by the media as a group of fringe right-wingers, a case of bad apples in an otherwise relatively placid America, the alt-right, a loosely-affiliated group of white nationalists who attempt to present themselves as more mainstream and less violent than their predecessors, and their more openly white nationalist counterparts were part of a long history of the white supremacist right being protected by the US government for what they believe. For all of US history, free speech has been defined to favor white people. People have, of course, always pushed back against this, as they did when they advocated taking down Confederate monuments across the country. Charlottesville was the alt-right trying to push back, hold the line at its racist past and present.

On the drive down to Charlottesville from Philadelphia, where I live, a friend who has lived outside the US for most of his life said the difference between this country and many others is that after a war elsewhere, there’s often something like South Africa’s Truth and Reconciliation Commission. People are tried in court, and the government makes an official vow not to repeat its crimes. After World War II, Germany banned not only Nazi gatherings, but all forms of Nazi propaganda, the swastika, and the “incitement of hatred” against any group of people—which carries up to a five-year prison sentence.⁵

That never happened in the United States. There was only one war crimes trial after the Civil War.⁶ There were no reparations (I remember as a kid the checks my grandma, a Holocaust survivor, would get in the mail from Germany. That never happened here for African Americans). Confederate flags are still legal; they still fly, even outside government buildings. My friends and I passed a few of them, waving in people’s yards, as we drove into Virginia.

The Civil War, my friend in the car said, had never really ended. We had never decided, as a country, what was officially not okay—where the line was drawn. But until the chaos of 2017, to many, including me, the line seemed to be headed in the right direction. Yes, there were people arguing for white supremacy back in 2016, too. People of color were being killed, arrested, and oppressed in the same ways they are today. But now Donald Trump was president and the alt-right, the loosely affiliated groups of white nationalists who are united by their love of memes and racism, had a direct line to the White House in the form of Steve Bannon.⁷ They had become emboldened, angrier, and more militant.

The rally seemed to make it clear that the alt-right was not just a conservative meme factory, but an armed and dangerous nationalist group with a specific (though usually unstated) definition of free speech that allowed for white supremacy and framed any opposition to it as anti-free-speech. More than that, they knew they had power on their side—not only grassroots power, but the power to define themselves in favorable terms, as inherently American as the First Amendment. Ralliers knew that if they went to Charlottesville they would be protected by police, protected by courts (unless they committed violence), and rhetorically protected by the mainstream media. They had every reason to believe this because by and large they have been protected: The Supreme Court has repeatedly upheld the right of white supremacists to rally, the federal government has repeatedly refused to classify violent white supremacists as terrorists (while applying the word, with its political and policing ramifications, to large swaths of US Muslims), and the US media in the 2010s seemed as ready as ever to defend their actions.⁸ The closest precedent to Charlottesville was a planned Nazi rally in the Chicago suburb of Skokie in the late 1970s, which drew thousands of protesters. If anything, the political and media support system for Nazis and white supremacists has only grown since then. The Skokie march was declared legal by state courts, but the media largely lambasted the idea, and many politicians did everything in their power to stop the march from happening (Skokie was majority-Jewish at the time, and many residents were Holocaust survivors). Amid fierce public opposition, the march never happened in Skokie.

Leftists have seen this line shift over the last few decades and have decided to act with their own force. Knowing that the courts, cops, and media would not necessarily protect them, they’ve increasingly organized into their own groups to push that line back, or at least hold it in place against the Nazis. Even those committed to nonviolence accepted that their side had to have an adequate response. Cornel West told the Washington Post after the Charlottesville rally that “the police didn’t do anything” to protect the counterprotesters. “If it hadn’t been for the anti-fascists protecting us from the neo-fascists,” he said, “we would have been crushed like cockroaches.”⁹