The Free Speech Switcheroo

So yesterday, Sarah Isgur and I argued on The Remnant about whether Nazis should have been allowed to march in Skokie. 

The first thing you should know is that the Nazis never actually marched in Skokie, a point we weren’t sufficiently clear about, eager as we were to debate the finer points of principle and the law. 

The second thing you should know is that the Supreme Court basically said the Nazis could march in Skokie if they wanted. 

The third thing you should know is that the decision had lasting significance for America, not least because the whole episode was the inspiration of Jake Blues’ famous line, “I hate Illinois Nazis.”

Anyway, we talked about it all on the podcast and, as I predicted, most listeners think Sarah had the better of the argument. 

And that’s fine. She’s smart and, occasionally, right too. 

But, I have to confess, I hadn’t really thought much about Skokie in years. My opposition to the Nazi demonstration was one of those “takes” I’ve had for so long that I kind of forgot some of my reasons. You know the sort of “confess your controversial opinion” thing you can pull out when the conversation goes that way. Sort of like my “the shah of Iran got a bad rap!” riff—he was a liberalizer and better than what replaced him! Or my—also limited—defense of the Austro-Hungarian Empire, or my view that Jack Donaghy is the moral hero and center of 30 Rock. 

Have drinks with me some time, I have pot-stirring opinions!

Free speech today.

Anyway, the thing that first changed my mind from the standard view that Skokie was a glorious moment in American history was a George Will column I read as part of a class my freshman year of college. You can read it here (though you have to scroll to page 13). Here’s how it begins:

During World War II, Sol Goldstein lived in Lithuania, where Nazis threw his mother down a well with 50 other women and buried them alive in gravel. Today he lives in Skokie, Ill., where on April 20 Nazis wearing brown shirts and swastikas may demonstrate to celebrate Hitler’s birthday. 

Sixty percent of Skokie residents are Jewish, including thousands of survivors of the Holocaust. 

Aided by the American Civil Liberties Union, the Nazis have successfully challenged an injunction against demonstrations with swastikas, and almost certainly will succeed in challenging ordinances banning demonstrations involving military-style uniforms and incitements of hatred. After 60 years of liberal construction of the First Amendment, almost anything counts as “speech”; almost nothing justifies restriction.

I reread the column for the first time in probably 20 years yesterday. I still agree with much of it. It was interesting to see how my opinions have evolved somewhat, but it was more interesting to see how opinions on the right have evolved.  

So, let’s talk about that for a minute. 

Excluding some counterexamples on the illiberal right, including the frontrunner and runner-up for the GOP nomination, free speech has never been more popular among conservatives. Defenses—and defenders—of the First Amendment—or “free speech principles”—are not always entirely consistent or coherent.  For instance, content moderation on social media sites is often dubbed “censorship” and in violation of the “spirit” of the First Amendment, even though the actual First Amendment allows for content moderation, and even the sites that claim to be committed to free speech moderate plenty of content. Trump’s Truth Social touts itself as opposed to censorship, but from the get-go it censored criticism of Trump and other unacceptable expression and content and still does so all the time. Or so I’ve read as I do not have an account there, for all the obvious reasons. 

That’s fine. Content moderation is good and Truth Social, Parler, Twitter, Facebook, et al., have the right to do it. That doesn’t mean they always do it the best way, but so what?

Anyway, the right loves to talk about its principled commitment to free speech maximalism a lot these days. 

Meanwhile, the left is more convoluted on the matter. It will often express similar principled commitment to the First Amendment’s protections of the press, but the First Amendment’s protections of speech often elicit handwringing or censorial outrage. This distinction—which is real, the First Amendment mentions both free speech and freedom of the press—nonetheless overlaps with a certain ethos on parts of the left. Journalists from established outlets (that just happen to be ideologically aligned) need every protection imaginable. Democracy Dies in Darkness®, in case you hadn’t heard. This, I think, is part of the left’s deference to the managerial class (as James Burnham would put it). The “experts”can be trusted with unfettered freedom, but the unwashed not so much. This is why the crazy idea of licensing journalists will not die. 

That brouhaha at Stanford last month illustrates the point in microcosm.  It wasn’t that the visiting judge didn’t have the right to speak, it’s just that the administrator present didn’t think “the juice was worth the squeeze.” In other words, yeah, sure, you have the right to say what you want (the juice), but the consequences of the speech—i.e., students having their ideological commitments questioned or criticized to the point of hurting their feelings—just don’t pass some kind of social justice technocrat’s cost-benefit analysis (the squeeze). 

Frequent Advisory Opinions podcast guest and consistent civil libertarian David French has a useful heuristic for understanding America’s commitment to free speech. Free speech maximalism is actually unpopular in America, but in almost every specific controversy a majority supports it. That’s because when the specific controversy breaks out the speech in question is favored by half the country. When “right-wing” speech is under attack by the left, the right buttresses the Frenchian forces. When “left-wing” speech is threatened, the left rides to the aid of the Frenchians. It’s all very Madisonian when you think about it. 

For David and Sarah, and other sincere defenders of free speech maximalism, this is wholly beneficial. And in most cases, I’m probably there with them. 

The free speech flip.

Which brings me back to Skokie. George Will’s argument, deeply informed by Walter Berns and other conservative intellectuals of the 1960s and 1970s, was that some expression does not deserve maximum protection because it serves no desirable end and is wholly outside democratic and constitutional discourse. Nazis do not believe in democracy. They do not believe in free speech. Allowing them to “compete” in the “contest of ideas” is self-defeating. 

As Will wrote:

Liberals quote Oliver Wendell Holmes’ maxim that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Liberalism is a philosophy that yields the essential task of philosophy-distinguishing truth from error-to the “market,” which measures preferences (popularity), not truth. Liberals say all ideas have an equal “right” to compete in the market. But the right to compete implies the right to win. So the logic of liberalism is that it is better to be ruled by Nazis than to restrict them.

Now, I’m not sure I agree with this, entirely (and I’m not sure George Will still does either). But it’s worth contemplating. 

In an article for National Review (May 12, 1978) Hadley Arkes denounced the way a judge had handled the Skokie case. 

In February Judge Bernard Decker of the Federal District Court had swept away the restrictions on the Nazis and warned against the danger of “permitting the government to decide what its citizens may say and hear.” By the end of March, however, Judge Decker issued a restraining order to postpone the demonstration (and, presumably, the “principle” he articulated) for another 45 days.

In this manner the courts have managed to create the worst of all possible worlds. They have been given the chance over several months to restrain the Nazis on grounds of jurisprudential principles that are fundamental to a democratic order. What they chose to do instead was to affirm the view that a democracy has no principles by which to judge the Nazis—but then to restrain the Nazis anyway without the benefit of principles: the courts have established now that the Nazis have the wildest claims to constitutional freedom, but that their freedom of expression may be restricted so long as hostile groups show a willingness to use violence. The result, in short, has been decidedly anti-libertarian. Instead of using the occasion to teach something about the principles that define legitimate interests and expression, the courts have given credence to the most cynical understanding of the law viz.,—that the law is merely a polite form in which the force of the many may govern the few.

What is remarkable about all of this is how much the right and left have switched places. Judge Decker was, in his way, asking whether the juice was worth the squeeze when it came to the Nazi’s free speech rights. They have the right to march, but it may not be worth letting them exercise that right if it will make enough people angry to invite a mob reaction. That can’t be the test for free expression. One with the law on his side is a majority, as the sainted Calvin Coolidge liked to say. 

The executive director of the ACLU during the Skokie debate, Aryeh Neier, later wrote a book celebrating his defense of the Illinois Nazis.  He wrote that the courts “defeated the Nazis by preserving the legitimacy of American democracy.” Really? American democracy would lose all legitimacy if Nazis were denied the ability to chant “the only good Jew is a dead Jew” in front of Sol Goldstein’s house? 

“The rule of the majority has no claim on the loyalty of the minority,” Neier also writes, “unless the minority has its chance to influence others and, thereby, to become the majority.” Really? Unless we give Nazis a fair shot at taking over, they have no obligation to follow the rules?

Ironically, given his later issues with Jews, Joseph Sobran was a fierce critic of all this. “Do Nazis have rights?” he asked in National Review. “Of course. So do murderers. But those rights don’t include the right to murder, or to use the political process to incite murder, or to use the right ‘peaceably to assemble’ to demand and threaten murder. It has nothing to do with the Nazis’ being a ‘minority’; it has everything to do with what they say.”

I find this quite compelling. The ability to draw distinctions between superficially similar things is the very heart of critical thinking. Not all minority claims are equal. Sarah very skillfully—and persuasively—argued that progressives today often make the argument that conventionally conservative speech they dislike is just like Nazi speech and therefore should be censored. Hence, we need procedural rules that allow for Nazi speech, too. 

Given the reality of today’s craptacular political culture it’s very hard for me to disagree with that on pragmatic and prudential grounds. 

What was lost.

But on a more fundamental level I think this is madness. Yes, people call all sorts of positions Nazi-like all the time. That doesn’t make them Nazi-like. Often, it makes the person saying such things an idiot. Then-Rep. Charlie Rangel said of Newt Gingrich’s proposed reforms of Congress under the Contract with America, “Hitler wasn’t even talking about doing these things.”

It’s true. Hitler never talked about term-limiting committee chairs or “zero-based budgeting.”

More to the point, a confident, serious society can make meaningful distinctions between people who want to abolish democracy, liquidate Jews and blacks, and install a thousand-year Aryan Reich, and people who don’t. 

But we are not a particularly confident or serious society when it comes to all manner of things that dearly require morally serious confidence. 

Back when the ACLU was routinely defending the First Amendment rights of Klansmen and Nazis, it was in the vanguard of the left. And folks like George Will and the gang at National Review who opposed them were the leaders of the right. 

That has to be hard for some young, very online left-wingers and right-wingers to grasp. Today, lots of young left-wingers want to ban all sorts of legitimate speech because it makes them feel like Sol Goldstein watching Nazis march in front of his home (even though—and I hate to have to say this—none of these delicate flowers are Sol Goldsteins).  Lots of young right-wingers bleat and moan about the censorship —or “deplatforming”—of pissant neo-Nazis. 

A few years ago, the ACLU switched sides in these arguments. It would no longer automatically defend speech that would give offense to “marginalized” groups. “Speech that denigrates [marginalized] groups can inflict serious harms and is intended to and often will impede progress toward equality.” So, the same organization that once took immense patriotic pride in defending Klan and Nazi rallies in black and Jewish communities would no longer necessarily defend people who said arguably mean things to cosseted college students with a chip on their shoulder.  

The right has largely switched sides too, essentially embracing the old ACLU’s view of free speech and association. 

But the context is very different, and not just because the internet has changed so much. When conservatives like George Will favored restricting the speech of actual Nazis he was doing it in service of conserving American and constitutional principles as he saw them. The ACLU’s turnabout is about conserving a very different set of social justice commitments. The only thing that unites today’s ACLU and the conservatives of yore is the desire to maintain a consensus about what is right and good. Rousseau said many wrong things, but one thing he got right was that censorship is only useful for preserving morals, not restoring them. 

And that’s why I am more on Sarah’s side than I thought I would be going into this. I think America lost something important and valuable when it decided that “no one has the right to judge”—speech, conduct, whatever. A confident and morally serious society can distinguish between Nazis and civil rights protesters, between a Klansman and a federal judge invited to speak to a bunch of law school students. 

I can’t prove it, but I think the Skokie decision helped sap that moral and philosophical seriousness from our politics and culture. 

But we are where we are. And therefore I am reluctantly, and somewhat remorsefully, on Sarah’s side of the argument, for now.