I’ve spent a lifetime accustomed to an open marketplace of ideas; one where I can speak or shout out what I want when I want without the need of any government stamp of approval. At times the content of my voice has surely irked more than a few but that’s the purpose, indeed, the precise intent of a robust open public dialogue.
On occasion, the echo of my voice has not at all ended with consensus but rather bruises, be they to my self-esteem, face or liberty. But that’s OK. Public heresy can and does at times carry an exacting price … it’s a cost of freedom.
The exchange of ideas is not intended to be soft, kind or even welcome. To the contrary, left to its own devices, it serves as an often controversial funnel for an informed body politic to draw its own conclusions about relevance and truth based, not upon official state dogma, but information and personal opinion no matter how popular or not it may otherwise be.
For weeks now I’ve watched the roar grow over recent events at Charlottesville, supplemented since by demonstrations in Boston, Berkeley and elsewhere. For those who seek to control the narrative or have failed to learn or forgotten the hard taught and fought lessons of history these demonstrations of faith have proved to be controversial beyond any uniform voice. That’s just fine. Those who see the uniformity of tone as a healthy guide-post of liberty are damned to a perpetual and narrow field of vision.
When it comes to speech, I’m a purist many would say an absolutist. It’s true. I want a choice on what to hear or see and with that the unimpeded opportunity to turn the page, change the channel or get up and leave the room. To do that, however, demands of opportunity the widest diversity of uninhibited ideas … the good, the bad, the ugly from which to choose.
I welcome neo-Nazis, the Klan and other white supremacists to the debate; they have an absolute right to march in lockstep and to air their ignorant and vile screed as they seek to inflame more with their powerless blank chant and stare. Ultimately the marketplace of un-tempered ideas will put to rest the bluster and hatred that is their scurrilous empty oath.
On the other hand, it is well settled under First Amendment jurisprudence no one is guaranteed an unchecked or easy parade when their words swell to become action or incitement. Lest there be any doubt or debate over when the safety net of speech transcends the bounds of “legitimate” or protected expression and falls into the hinterland of unshielded action, that question was resolved long ago.
Thus, in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) and later in Brandenberg v. Ohio, 395 U.S. 444 (1969) the Supreme Court recognised the “fighting words” and “call to action” exceptions to the First Amendment.
In Chaplinsky a riot broke out on a city street after citizens complained to police that Walter Chaplinsky, a Jehovah’s Witness, was handing out religious literature and “denouncing all religion as a ‘racket”. Once the riot began, he screamed at a responding officer that he was “a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists”. Having been convicted of disturbing the peace, Chaplinsky’s First Amendment defense was rejected by the Supreme Court on the ground that his speech amounted to “fighting words” and was thus unworthy of constitutional protection.
As noted by the Court, “fighting words” are words “which by their very utterance inflict injury and tend to incite an immediate breach of the peace”. Such words are “so valueless and so harmful that government may prohibit them entirely without abridging the constitution”.
Later in Brandenburg v. Ohio, the Supreme Court revisited the extent of constitutional protection when it comes to free speech and an unencumbered press. In what today remains very much controlling case law, the Court prohibited a State from forbidding or proscribing advocacy of the use of force or of violation of law except where such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.
In its unanimous decision, the Brandenburg Court set aside a Ku Klux Klan leader’s criminal conviction on the ground that his remarks were protected by the First Amendment. The leader had staged a rally for several television reporters where he made derogatory remarks against “Blacks” and Jews suggesting that the government should return Blacks to Africa and Jews to Israel.
Importantly for First Amendment purposes, the speaker stated that if Blacks and Jews did not leave, the Klan would take matters into their own hands to force their removal. Nevertheless, the Court ruled that the mere advocacy of violence did not forfeit First Amendment protection. Instead, it stated that speech lost such shelter only if and when it incited imminent lawless activity and was likely to produce it.
In need of a working definition of the “call to action exception” to First Amendment protection: fast forward to Charlottesville the summer of 2017.
Little need be said here that is not already widely known about the weekend of hate and violence in Charlottesville where hundreds, perhaps many more, white supremacists converged upon a university town to exercise their fundamental free speech rights about race and religion. What began with an ominous torchlight parade of odium reminiscent of Nazi Germany in the 1930’s filled with chants of “blood and soil” quickly moved well beyond mere words or empty threats.
Indeed, not long after the demonstration began dozens of “militia” members suddenly appeared dressed in camouflage and heavily armed with semi-automatic rifles and pistols. Against this backdrop chants of “Jews will not replace us,” and screams of “go the f**k back to Africa”, “f**k you ni***r” and “Dylann Roof was a hero” circulated throughout the crowd. Roof was the white supremacist that murdered nine African Americans in a church in Charleston, SC, in 2015.
Not long thereafter the horde of hate unleashed much more than a spew of offensive, even painful words, as racists clubbed African American bystanders and aimed weapons with at least one discharged at counter-demonstrators. Ultimately one neo-Nazi drove his automobile into a group of protestors killing one and injuring many others.
Against this light, there can be little debate that this rally of supremacist hatred and violence almost immediately lost constitutional protection such as that enjoyed by the Klan long before in the expansive but well-supported reach of Brandenburg with its appreciation for mere words. Here, with predictable imminence, words soon gave way to the precise kind of lawless incitement that proved to be exactly what the First Amendment does not protect.
This is not to suggest that the neo-Nazis and the Klan did not have an absolute right to begin their stalk in the first stead, but rather recognition that protected speech is often but the starting point in a constitutional analysis that, like a demonstration, can prove to be fluid and certainly not without its bounds.
A long history of supremacist hate
Let’s be clear … there is simply no comparative bearing between those who seek to perpetrate genocide and those who fight back against it by any means necessary.
The notion of a relative ring between the chant of those who target people of colour, women, immigrants, refugees, the LGBTQ community, political dissidents and Muslims and Jews for extermination and those who confront it through militancy is but an all too convenient and removed call for self-righteous inaction.
Indeed, the excuse that a determined resistance will be manipulated to serve as a pretext for state repression is not just a palpable blinder to a dark historical reality, but very much furthers an empty contemporary misspeak.
In the United States, race, religion and class directed hatred and violence is not a historical anomaly. Tragically, for many, it is who and what we are. From our earliest days, our Republican ideal has been stained by genocide, built through slavery and extended by notions of supremacist greed and power. These noxious bell tones are not the texture of dishonest statues alone, but have weaved their way into an unbroken experience that has fed and continues to feed upon the most vulnerable among us.
After all, “de jure” slavery may be long gone but its badges and incidents continue on today just recast in an ever-present stark reality of economic, political and prison servitude. And while “give me your tired, your poor, your huddled masses yearning to breathe free” may still shine brightly high above the harbor of New York City, from coast to coast can be heard a very different and growing dark refrain which seeks to indict the next generation of now unwelcome immigrants for the sins of many of our earlier.
One need not walk too far down the pathway of history to see the disfigured body of 14-year-old African American Emmett Till murdered for the temerity of “flirting” with a white woman. His was an execution different only in means from almost 5,000 other documented lynchings that occurred in the US from 1882-1968 and which targeted mostly black women and men, although many whites suffered the same fate for helping African Americans or being anti-lynching.
Not to be undone by more recent historical events, in the old West Native Americans, Latinos, and Asian Americans were routinely victimised by the same extrajudicial tree of justice.
Among the most dangerous and active of all hate groups are those committed to violent right-wing terrorism motivated by various ideologies and affiliations such as those recently on display at Charlottesville.
This was not the hallmark of merely a passing unsophisticated time and place but rather evidence of a dodgy culture that has exalted the reflection of its own narrow mirror image against the diversity that many have long struggled to become and maintain. Nor is its reach by any means relegated solely to earlier, simpler times when mob rule typically overpowered an uncertain and as yet evolving people and political class.
To the contrary, while the US today sits as the worlds most powerful and “developed” sovereign, many in its nativist chorus still find great value, indeed, perverse comfort through hatred and violence that no longer even bothers to seek safety through the cover of a sheet or the shadow of a darkened tree line.
It remains very much a question as to what motivated Sunday’s mass murder in Las Vegas where a madman mowed down hundreds of strangers – innocent victims guilty of no wrongdoing other than the misfortune of being in the wrong place at the wrong time.
Yet, it says much of a country where mindless hatred has been overwhelmed by the deadly tenor and tone of a time where racial and religious odium has been exploited by political and supremacist rhetoric alike.
To be sure, recent US history speaks volumes about just how unhinged and dangerous far right supremacists among us have become in their pursuit of a land that is not theirs to claim or a collective destiny, not theirs to direct.
In that light, the list of hate-motivated mayhem seems to run almost as predictable and steady as each passing month.
Thus, in April of 2014, Frazier Glenn Cross, a former Ku Klux Klan leader, opened fire on two Jewish sites in a Kansas City suburb on Passover eve, killing a doctor and his 14-year-old grandson and a woman. He shouted “Heil Hitler” as he was taken into custody.
Two months later Jerad and Amanda Miller, a couple who shared their extreme anti-government positions through videos posted online, shot and killed two Las Vegas police officers, and later a civilian. They spent time on Nevada rancher Cliven Bundy’s property during his standoff with the federal government.
In November of 2014, Larry Steve McQuilliams fired more than 100 rounds at government buildings in downtown Austin, including a police station, a Mexican consulate, a federal courthouse, and a bank. He tried to set the consulate on fire before he was shot dead by police. Recovered later from his van were homemade bombs, a map containing 34 targets, and a white supremacist book called “Vigilantes of Christendom”.
In July of 2015, John Russell Houser opened fire at a movie theatre killing two women, ages 21 and 33, and injured nine others before committing suicide. Houser espoused extremist right-wing views and was an ardent anti-feminist.
Several months later, four men wearing ski masks attacked Black Lives Matter protesters during a demonstration, wounding five. The four reportedly met online in forums frequented by those with racist and anti-government views and exchanged text messages which discussed shooting black people and photos of one man that showed him posing with confederate symbols.
Not long thereafter Robert Louis Dear, a 57-year-old attacked a Planned Parenthood clinic in Colorado Springs. Armed with four assault rifles and other weapons, he killed three people and injured nine others. Later he told investigators he hoped he would be met in heaven “by aborted fetuses thanking him for saving unborn babies”. Dear also described members of the “Army of God,” a group of anti-abortion extremists behind other attacks on abortion clinics, as “heroes”.
In October of 2016, three men belonging to a group called “The Crusaders,” an anti-immigrant, anti-government militia, were charged with conspiring to bomb a Somali immigrant building complex in Kansas. The men, who stockpiled firearms and explosives, repeatedly referred to the Somalis as “cockroaches”.
These are but a few of the more glaring recent instances of crimes carried out against persons or institutions motivated by hate. Under the Hate Crime Statistics Act, such crimes are those “that manifest evidence of prejudice based on race, gender and gender identity, religion, disability, sexual orientation, or ethnicity.”
According to a recent Department of Justice study (pdf), more than 250,000 Americans over the age of 12 are victimised every year by hate crimes. Of significance, the study found that in recent years only about one in three hate crimes are ever reported to law enforcement.
While many of these offenses are carried out by individuals, according to the Southern Poverty Law center, an Alabama based group well-known for its tracking of hate crimes, the number of hate groups in the US rose to 917 in 2016. The most dramatic increase was in the number of anti-Muslim hate groups, which jumped some three hundred percent to 101 from 34 in 2015.
Among the most dangerous and active of all hate groups are those committed to violent right-wing terrorism motivated by various ideologies and affiliations such as those recently on display at Charlottesville. They include anti-communists, neo-fascists, neo-Nazis, the Klan and those opposed to abortion.
Since 2001, the number of violent attacks by such groups in the US has surged to an average of more than 300 a year, according to a study by the Combating Terrorism Center at West Point.
Enter Donald Trump
Above all else, the campaign of Donald Trump was one that sought to exploit and stoke the supremacist and nationalist flames of right-wing “populists” who rarely before had felt at ease with a public display of odium that has stretched across the country from rural hamlets to major urban settings.
However, with Trump and his appeal to an ethnocentric supremacist base, we saw the introduction of extremist ideology into the mainstream of our political process. Predictably, his platform, rhetoric and policies have created a political climate in which hate crimes have flourished.
Indeed, campaign attacks month after month on Muslims, immigrants, inner-city residents, refugees, the media and race-based protectionist policies along with a demand for a wall to protect us from “rapists” created a political climate that has served as an incubator for an aggressive public display of nationalist supremacy not before seen in contemporary politics.
Beginning with an upsurge that started with the presidential campaign and has continued unabated to date, hate crimes, including attacks against African Americans, American Muslims and Jews have soared especially in major US cities long viewed by fascist forces in and out of government as the home of a “cosmopolitan elite” and fake news. Sound familiar?
Since Trump’s election, news outlets and social media accounts have swelled with reports of swastikas at schools, racist taunts, public bullying and other hate-fueled attacks and acts of intimidation. These supremacist fueled attacks have been borne out by the Council on American Islamic Relations, which has documented 63 publicly reported incidents from January to July 2017, where mosques were targets of threats, vandalism or arson. In addition, Southern Poverty Law Center has documented well over a thousand reported incidents of race religious or political motivated harassment or intimidation in the immediate period following the presidential election.
As recent events in Charlottesville have shown the unleashing of supremacist violence has now become very much the norm in a time where and when the President sees the exploitation of fear and ignorance among his nationalist base as a necessary step to safeguard not just his political agenda but his very presidency.
Led by an explosive misfit who sees truth as detriment and care as a cause for concern, today throughout this country disaffected, disenfranchised indeed lost women and men find hope if not temporary reprieve in the pain of others. It speaks volumes not just about who we have become as a people but the need now more than ever for a determined resistance to stand up to race, religious and class-based violence.
One need only look to the early 30's to wonder how much different the world might have been today if a militant fierce resistance stood up then against the winds of fascism that blew across Nazi Germany with a very certain and public gale.
Much has been written over the last several weeks about Antifa, a loose-knit collective of anti-fascists that with increasing fervor have challenged neo-Nazis, the Klan and other white supremacist hate groups, at times matching them blow for blow.
Comprised largely of young women and men of all races, religions and politics Antifa has confronted racial and religious supremacists who seek to intimidate the marketplace of ideas and resort to deadly violence whenever that effort fails or where it proves to be more convenient.
Not surprisingly, some neo-liberal commentators and progressive academics have seemed to fall all over one another in a race to see who can indict Antifa first for “strategic blunders” or so-called missteps of “principle”. Can dissertations be far off?
Meanwhile, politicians for sale and law enforcement agencies long since sold, hold court daily on how to criminalise Antifa relying upon long out-dated and unconstitutional practices which not only seek to silence protected dissent but hush the many, for the acts of the few, and do so with arbitrary abandon.
On this score, I’ll defer to classic constitutional scholars to ultimately pick apart and put to rest the notion that government can lawfully cherry pick particular domestic movements to criminalise in a race to purify speech while it labels others committed to overt acts of terrorism as generally within the reach of legitimate dissent.
Before however moving on I wonder whether to fall within the scope of this new collective criminal designation one must carry a formal identification card in an organisation without existence or membership. Must the card say Antifa or does anti-fascist suffice? Must one go through a formal initiation rite as so much a rush for a political frat before criminal accountability can ensue? Perhaps culpability will be determined not on the basis of formal membership but rather a particular chant or a colour mask, a style of shield or the length of one’s hair?
The possibilities of a constitutional misstep are endless as fence sitters and apologists alike, sprint to curry favour with a public that generally likes its debate prim and proper and, at all times, limited to mainstream politics and redress.
Ultimately, at this time, I’m less concerned with dissecting constitutional infirmity than I am with selective historical memory.
On this point, one need only look to the early 30’s to wonder how much different the world might have been today if a militant fierce resistance stood up then against the winds of fascism that blew across Nazi Germany with a very certain and public gale.
Imagine life today in the US, if Harriet Tubman had not tossed caution to the wind or if John Brown had not moved with speed to Kansas just after that territory had been opened for the possible expansion of slavery or had not made his later fateful march to Harpers Ferry.
And what of the uncontested political slaughter that was endemic to Latin America in the 60’s as petty despots … often bedfellows to US counterparts … brought us the desaparecidos still mourned by mothers who meet and march years after their children vanished not for deeds, but mere thoughts and words.
I fear not at all a determined, at times, even militant response to a dark violent time-worn supremacist message which left free to fester will quickly and surely convert ugly words to deadly force leaving principled liberals stunned in its lethal wake.
Commissions galore have found ample cause for hate; historically, however, they have done little to stop its march resting instead on volumes of excuse filled with petty footnotes. Politicians, theologians and studied experts always seem to know the answer to the wrong questions no matter how popular or certain the discourse which flows.
To balance hate as an expression of aim with love as a statement of purpose has a nice collegial ring to it but must be left to the debate of classrooms, not the streets where their marriage is just not possible.
To academics and historians fascism may make for an interesting analytical read but for those who wear its target through their colour, creed or political candor it is very real and it is here and it is now.
This is not a call to arms or a preach that the only answer to violence is to meet it with violence but rather a recognition that there are crossroads in history when a drive to alter a violent public path has required a diversity of strategy and tactics that may or may not be limited to protest and pen alone.
On the other hand, those that choose to walk down a pathway of militant resistance must do so with not just resolve and principle but a willingness to pay the personal price often demanded of those that have crossed the line from speech to action.
For those of us who are closer to the end of the journey than its start, it seems far too easy almost predictable to try to dictate the march of those yet to follow. Armed with experience and dogged opinion, ours has been a travel for us and us alone.
I have great faith in the ability of those who will soon inherit the world to determine the course of the world that will be theirs and theirs alone to claim. Today in streets throughout the US, indeed the world, young women and men of great principle and fierce purpose have learned to dare to struggle, to dare to win.
Although our view of the future may very well differ with theirs … perhaps at times even clash … we’ve had our run and it is now they who must and will decide how to confront and reshape a world built far too long of excuse fueled by supremacist hatred and violence.
Stanley L Cohen is a lawyer and human rights activist who has done extensive work in the Middle East and Africa.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.