In the New York Review of Books (28 September 2017), David Cole offers a thoughtful argument in defence of the right to free speech. Cole serves as the national legal director for the American Civil Liberties Union. The ACLU gave David Kessler legal help to preserve his permit for the rally he sponsored to protest the removal of the Robert E. Lee memorial from Emancipation Park in Charlottesville, Virginia. This is the rally that took place on 12 August 2017, when, in the course of violent clashes between protestors and counter-protestors, a young woman was killed.
Cole argues that, despite the unappealing characteristics of the rally sponsored by Kessler, nothing authorizes the state “to suppress speech that advocates ideas antithetical to egalitarian values.” In the course of his argument, he suggests that egalitarian values are optional for American citizens. He seems to think that just as some people opt to live in diverse neighbourhoods, while others opt to live in homogeneous ones, egalitarian values are things which some American citizens may embrace, and which others with equal legitimacy may opt to reject.
Cole suggests that the First Amendment protects speech which is “deemed offensive to minority groups.” He also says that the First Amendment protects a free “marketplace of ideas.” He notes that some groups have more power in the marketplace of ideas, and thus that it is no more a level playing field than the marketplace of goods and services. He grants then that there is some tension between the principle of equality and the freedom of speech, just as the freedom to own property benefits rich people more than it does the poor. However, he explains, the marketplace of ideas is not meant to be a method for identifying truth.
In this way, the free exchange of ideas operates in much the same mode as does our justice system. For example, in a criminal case, both the prosecution and the defence have equal opportunities to present arguments, and the members of the jury are directed to select the argument they find most persuasive. In this system, it is no one’s business to try and determine the truth.
In this respect, both our trial system and the right to free speech are based on a kind of scepticism. On the sceptical view, there is no way for us to agree on the truth—if there is such a thing; so the best we can do is grant a variety of opinions the freedom to compete. As Cole puts it: “It is better for the state to remain neutral than to dictate what is true and suppress [falsehood].” To this he adds a helpful reminder: our elected representatives act in the name of the majority. Thus they can hardly be expected to protect the sensitivities of minority groups who are likely to find certain popular views offensive. So state action (by elected officials) is not something minorities ought to look to for protection in cases of this kind–cases, Cole suggests, where their feelings may be hurt.
In my view, they ought to look towards the judicial system instead. Against Cole’s argument, I would point out that what is at stake in the case of a group that proudly bears the swastika and that chants Nazi slogans has nothing to do with opinions or sensitive feelings. What is at stake is one of the truths that our foundational documents hold to be self-evident—namely, that all people are created equal. On my interpretation, in their original context the words in the Declaration of Independence have a religious sense: that all human beings have equal worth in God’s regard (except those who decisively harden their hearts against what is good, true and beautiful, and who thus lose that regard).
But for present purposes we may restrict ourselves to the legal sense: no US citizen is more or less a citizen than any other, and citizenship once granted cannot be revoked. This proposition may not be based on any truth about the nature of reality. But what is true is that the sense of this proposition is the cornerstone on which everything else in our legal and political system depends.
It is also a truth of history that the Nazi regime denied basic rights to certain groups of people and that it eventually revoked their citizenship altogether. So anyone who proposes to celebrate the Nazi system of values in our public space, and at the same time requests the government’s protection, is asking for something logically absurd. They are both affirming and negating the principle of US citizenship. They are affirming it by claiming that they as US citizens have just as much right to hold a protest rally as any other group of citizens. But they are also negating the principle of US citizenship by advocating that basic rights be denied to certain groups of people or even that the citizenship of those people be revoked.
This is not something that any other US citizen should tolerate or be asked to tolerate. More to the point, since any such invasion of our public space constitutes an attack on our must fundamental legal principles, it should be illegal and ought as such be prohibited. If we recall that many of these protestors were armed with lethal weapons, those witnessing the event were correct to perceive them not merely as morally offensive but also as enemies of the state. And enemies of the state have no civil rights at all—much less the right to invade our public space with their hateful and deeply un-American slogans.
In contrast, citizens do have the right, for example, to hold a rally that celebrates “white” (Euro-Anglo-American) cultural traditions, and at such a rally to argue that their culture is superior to that of other traditions, that it above all others ought to be taught in public schools; or that “white” people are now suffering disadvantages because of programs that selectively benefit people of colour, and so on. All of this is matter about which US citizens may reasonably disagree; and however offensive it may be to some, none of it attacks anyone’s basic civil rights.
That is the only criterion that, when violated, ought to trigger state suppression. Decisions of this sort are strictly legal and have nothing to do with anyone’s opinions or sensitive feelings. What is at stake is a fundamental principle of the law of our land—which is made for you and me, for all citizens equally.