Yes, rights are important, and we must offer them generously. But surely we can agree that Nazis don't have rights?
I mean, surely we can agree that we don't have to extend rights to people who, given a chance, would take those rights from us. Surely we don't have to extend rights to people who are actively arguing to take our rights away. Surely we don't have to extend rights to people who disagree with, and attack, the fundamental precepts underlying those rights: that all people are created equal and endowed with the right to life, liberty, and the pursuit of happiness. Surely we don't have to extend rights to people who deny our humanity.
That's the argument — both viscerally appealing and idiotic — underlying some university students' fervor for censorship and even violence.
You can see it in a breathtakingly semi-literate and frankly totalitarian diatribe in The Wellesley News:
Shutting down rhetoric that undermines the existence and rights of others is not a violation of free speech; it is hate speech. [sic] The founding fathers put free speech in the Constitution as a way to protect the disenfranchised and to protect individual citizens from the power of the government. The spirit of free speech is to protect the suppressed, not to protect a free-for-all where anything is acceptable, no matter how hateful and damaging.
You can see it in the demands of students of Pomona college:
The idea that we must subject ourselves routinely to the hate speech of fascists who want for us not to exist plays on the same Eurocentric constructs that believed Black people to be impervious to pain and apathetic to the brutal and violent conditions of white supremacy.
You can see it at Berkeley, in apologias for violence used to suppress speech:
The administration, demonstrated in emails from Chancellor Nicholas Dirks, failed to problematize a thoughtless adherence to the First Amendment and thus played straight into the hands of the likes of Yiannopoulos, who deliberately use such a basic interpretation of free speech to smokescreen their toxic, sexist, white nationalist agenda. Yiannopoulos and his supporters have a track record of actively targeting people in their hate speech, and the ideology they peddle perpetuates ideas that urgently endanger members of our community. In short: The principle of freedom of speech should not be extended to envelop freedom of hate speech, for the unchecked normalization of hate speech will have real consequences.
Isn't it simple? Isn't it principled? Isn't it safe? They're not trying to silence all speech. They just don't want to allow speech that calls for their extermination, dangerous speech.
First, the argument relies on a false premise: that we don't, or shouldn't, extent rights to people who wouldn't extend those rights to us. This is childish nonsense, and a common argument for tyranny. We criminal defense lawyers know it very well: why should this guy get a trial? He didn't give his victim a trial. Why should she be shown any mercy? She didn't show her victims mercy. Why does he get due process? He didn't give his victims due process. The argument is particularly popular since 9/11. You hear it a lot whenever anyone suggests that maybe people accused of being terrorists — or of being someone who might plausibly grow up to be a terrorist, or might take up terrorism as soon as this wedding is over — perhaps should be treated as having some sort of right not to be killed or tortured or indefinitely detained. Nonsense, is the response. They wouldn't give you any rights. The constitution isn't a suicide pact! It's also popular in matters of modern religious liberty. How can you argue that Muslims should have the freedom to worship here when Muslim countries deny Christians and Jews that right? In this manner, the student Left represented by the quotes below shares an ethos with the authoritarian and racist wings of the Right. A common taste for authoritarianism makes strange bedfellows.1
In fact, we extend rights to everyone, regardless of whether they support those rights or not. That's the deal, it's the way rights work. Rights arise from our status as humans, not from our adherence to ideology. If they didn't, I could very plausibly say this: Pomona College, Wellesley College, and Berkeley should expel the students quoted above, because people actively advocating to limit free speech rights can't expect any free speech rights themselves.
Second, the "Nazi Exception" is not safe or principled because it's applied by humans, and humans are ridiculous and awful. Look, we already have exceptions to the First Amendment for dangerous speech: the doctrine of true threats (which allows punishing threats meant to cause fear and objectively reasonably causing fear) and incitement (which allows punishing speech aimed at provoking imminent lawless action). Those exceptions are narrow and well-defined and zealously monitored. There's a good reason for that: if you create a free speech exception, someone will always try to stretch it all to hell.
These students and their supporters argue that the "Nazi Exception" would only allow punishment of speech advocating actual violence against others. They're lying — they can't keep that story straight for a full paragraph. Ask them! Ask the students at Wellesley:
This being said, if people are given the resources to learn and either continue to speak hate speech or refuse to adapt their beliefs, then hostility may be warranted. If people continue to support racist politicians or pay for speakers that prop up speech that will lead to the harm of others, then it is critical to take the appropriate measures to hold them accountable for their actions. It is important to note that our preference for education over beration regards students who may have not been given the chance to learn. Rather, we are not referring to those who have already had the incentive to learn and should have taken the opportunities to do so.
It's not just speakers advocating genocide, it's "racist politicians." It's not just speakers advocating violence against groups, it's "speech that will lead to the harm of others."
Ask the students at Pomona:
The idea that the search for this truth involves entertaining Heather Mac Donald’s hate speech is illogical. If engaged, Heather Mac Donald would not be debating on mere difference of opinion, but the right of Black people to exist. Heather Mac Donald is a fascist, a white supremacist, a warhawk, a transphobe, a queerphobe, a classist, and ignorant of interlocking systems of domination that produce the lethal conditions under which oppressed peoples are forced to live. Why are you, and other persons in positions of power at these institutions, protecting a fascist and her hate speech and not students that are directly affected by her presence?
Heather MacDonald is a leading apologist for police violence, and I abhor her contributions to national discourse. But treating her as a genocide advocate demonstrates that these students can make anyone a genocide advocate and justify the suppression of anyone's speech. MacDonald's chief sin, in these students' view, is that she's a vigorous critic of the Black Lives Matter movement, its goals, its rhetoric, and its methods. I don't share many of her criticisms, but the notion that it is genocidal and outside acceptable discourse to criticize a protest movement is vile, un-American, imbecilic, and not to be taken seriously. These students' view that America is riddled with racism and injustice is quite arguable. But combined with their theory of permissible speech, it means that nearly anything can be identified as an instrument of genocide and therefore suppressed. I'm a Nazi. You're a Nazi. She's a Nazi. He's a Nazi. Wouldn't you like to be a Nazi too?
In modern America, we are faced with genuine aspiring Nazis who believe in genocide, and despicable hucksters who encourage them for profit. But these students — and the university cultures that produce them — utterly lack the honesty, principle, or self-awareness to identify them, or to identify true threats or genuinely actionable incitement. With few exceptions, American universities are unable or afraid to make rational, intelligent judgments about what speech is "dangerous" in any meaningful sense of the word. They've proved that again and again and again and again. Asking modern American universities "is this speech dangerous?" is like asking modern American cops "was it necessary to shoot that dude?"
Third, these students are pursuing useful idiocy in the guise of safety. Exceptions to free speech don't get used to help the powerless. They get used to help the powerful. We see that in the case of blasphemy laws: imagined by some on the Left as a measure of respect for a multicultural society, actually primarily used to oppress religious and ethnic minorities and the powerless. We see it in colleges, where the same rhetoric used by these students is also used to silence their allies. We see it in some reactions to campus violence, openly thirsting for an opportunity to suppress speech. If these students think that speech exceptions will ultimately promote their concept of social justice, they're goddamned fools. Fools have rights too, but we're not obligated to cooperate with their foolishness.
The "Nazi exception" is unprincipled, self-indulgent, and childish. Nazis and their admirers and fellow travellers ought to be called out, ridiculed, condemned, and exposed to the full array of consequences the First Amendment offers. They ought to face criminal and civil sanctions if they break the law. But I decline the invitation to help these students destroy the village in order to save it.
Copyright 2016 by the named Popehat author.