Considering the use by later Supreme Courts of Oliver Wendell Holmes jrs dissent in Abrams v The United States to protect the speech of terrorist groups with a history of violent attacks and murders, the KKK in the Brandenburg decision and Nazis, certainly among if not the most successful of murderous ideologies, dwarfed only by the inclusive group of ideologies that fall under white supremacy, it is remarkable how much of Holmes dissent he spends denying that the politically impotent anarchists and single socialist and vaguely lefty writers and publishers of two pamphlets were any real danger at all. Or at least. that they were not in any way dangerous in the way that the majority opinion implied and stated. That, alone, makes the use of his dissent to enable the propaganda and proselytization and encouragement to violence later courts made use of Holmes dissent for both illogical and a dangerously irresponsible lie.
The paragraphs of the dissent describing the supposed offenses and how the actual facts of what they said was harmless, the identities of the lefties changed to the KKK, Nazis, militant white supremacists WITH THOSE GROUPS HISTORY AND IDEOLOGICAL BASIS IN DENIAL OF RIGHTS TO MILLIONS, OF MURDER BASED ON RACE AND IDENTITY,* would turn to total and complete, lying, ahistorical nonsense in later uses of it.
The first of these leaflets says that the President's cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that "German militarism combined with allied capitalism to crush the Russian revolution" — goes on that the tyrants of the world fight each other until they see a common enemy — working class enlightenment, when they combine to crush it; and that now militarism and capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world and that is capitalism; that it is a crime for workers of America, &c., to fight the workers' republic of Russia, and ends "Awake! Awake, you Workers of the World! Revolutionists." A note adds "It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House."
The other leaflet, headed "Workers — Wake Up," with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth and says that with the money they have lent or are going to lend "they will make bullets not only for the Germans but also for the Workers Soviets of Russia," and further, "Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, 626*626 but also your dearest, best, who are in Russia and are fighting for freedom." It then appeals to the same Russian emigrants at some length not to consent to the "inquisitionary expedition to Russia," and says that the destruction of the Russian revolution is "the politics of the march to Russia." The leaflet winds up by saying "Workers, our reply to this barbaric intervention has to be a general strike!," and after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk ends "Woe unto those who will be in the way of progress. Let solidarity live! The Rebels."
No argument seems to me necessary to show that these pronunciamentos in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending § 3 of the earlier Act of 1917. But to make the conduct criminal that statute requires that it should be "with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." It seems to me that no such intent is proved.
You can contrast that to, not only the language of the past and current KKK, Nazis, what is euphemistically called "neo-Nazis" and white supremacists, you can compare the violent, murderous results that came from that language. And while doing that exercise, you can consider the speech and publishing and the agitation led to the Confederate treason against the United States government and see that not only is Holmes argument not applicable to them, the part of his argument that gives any of his dissent a character of rational realism in the particular case he wa addressing is clearly not applicable to the people the ACLU, the Rutherford Institute, the "civil liberties" industry and the Supreme Court have enabled through clipping out words from the rest of it.
The argument that permitts the advocacy of denial of rights to Black People - let's admit that they are the primary targets of all of those groups in the United States - Latinos, LGBT people, Women, Muslims, Jews, etc. AND THEIR MURDER is in any way safe or rational is only possible if you claim that there is no rational expectation of them or their listeners or readers carrying out those attacks. And in 2017, that argument is obviously wrong and dishonestly made. If making that argument is acceptable within the legal profession, law scholarship, in the judicial branch of government for groups which do advocate the denial of the most basic of natural rights to named racial, ethic and other groups and which do advocate violence and murder of them, then there is no reason for anyone to trust anything they do because they have all become dangerously and whimsically undependable. Arguing that, after the carnage of WWII, it is in any way safe to bet that "it can't happen here" is ridiculous exceptionalism that there is no rational basis in believing BECAUSE IT DID HAPPEN HERE UNDER OTHER NAMES. Slavery, the Confederacy, Jim Crow, the murderous theft of the continent and nearly successful genocide of Native Americans, the eugenics program made Constitutional by Holmes, which was studied by the Nazis in Germany as an inspiration to learn from, etc. are an obvious proof that it not only can happen here, it has and it does happen here.
Implied in the entire dissent of Holmes is the idea that even the Supreme Court is undependable in being able to make those distinctions. If that is the case then Holmes should have called for the abolition of the Court, something no member of it ever did and which no member of the ACLU or other lawyer would ever do. Also implied in the entire range of First Amendment babble on such matters is the even more unspeakable idea that the words of the First Amendment are too vague to really mean what they say. That is true. The First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I will assert that the wording of that long, complex sentence is as ambiguous as the troublesome Second Amendment which was applied absurdly and dangerously in the Heller decision to turn what had been less insanely interpreted as a collective right to bear arms into an absolute individual right to own and publicly carry automatic weapons. Something which anyone not trained to put on judicial blinders would see in the pictures of the "open carry" fanatics, especially the Nazis and KKK members at the rally the ACLU advocated for. And Congress, from the start, even the Continental Congress members would make law abridging an absolute freedom of speech, even inserting a ban on consideration of petitions to abolish slavery from the early years of Constitutional government.
The desire for the drafters of the original Constitution to play 18th century Augustan poet making universal and so vague pronouncements has made the Bill of Rights a land mine and opportunity for the enemies of equality in the hands of the Rehnquist and Roberts courts. The idiotic advocacy of the ACLU for the "free speech" of billionaires and Nazis has presented them with those golden opportunities to deny rights to the very people the ACLU allegedly pretends to exist to protect.
What you make of the part of that sentence relating the second clause "or abridging the freedom of speech, of of the press, to the word "peaceable" found only in the clause of the right of people to assemble and petition the Government for a redress of grievances, is the difference between admitting a right to advocate for peace and for the exercise of rights and the permission to advocate for the abolition of rights with violence, even murder.
Pretending that the elite lawyers who are, in almost all cases, the product of elite law schools and many years experience as lawyers and judges and law scholars cannot discern the difference between The American Friends Service Committee or the Southern Christian Leadership Conference and the KKK and Nazis on the basis of the latters advocacy and history of violence and inspiring violence is an absurd exercise in willful blindness at the top rung of the legal profession. Only people miseducated by a system which rewards such dishonesty could get away with that and, obviously, our legal profession does that because that pretense is the real basis of pretending they don't know, in 2017, that Nazis and the KKK are terror groups that can and have, in world history and the history of the United States, successfully organized to non-peacefully assemble and kill people, sway state legislatures and Congress to deny even more fundamental rights to entire groups of people, often with the blessing of the Supreme Court.
The left buying that line is as dishonest. As I mentioned yesterday, anarchists had, in fact, still were in 1919 waging idiotic campaigns of senseless violence which only produced a backlash which damaged the political identity of the left. Marxists, another group on behalf of whom lawyers of the left have asserted this line of legal bull shit, were never any real danger to the corporate state in the United States. Asserting that "we must allow the Nazis and KKK to say what they want to or "they" will prevent us from speaking" often meant communists as the "us" asserted. That is not only total nonsense, it is a ridiculous aspiration in a country in which fascists have always been a far greater danger of gaining power than any lefty group. And once they did gain power, they would do away with any idea of equal rights, oppressing, enslaving and killing the real "us" including everyone that the idea of equal rights was developed to protect.
The early years of the ACLU, its early history was based in exactly that kind of idiocy that believed that enabling the KKK, Nazis, white supremacists, the publishing and movie industry to advocate the most depraved of things would, somehow, advantage the political aspirations of the left. It was always blended with a dishonest ruse to benefit the red fascism of Marxism, who never had any chance of benefitting from it because their ideology was unacceptable to the rich and powerful and the major organs of the media while the equally anti-democratic ideologies of fascism, white supremacy and Nazism were acceptable and congenial to them, and so would be the obvious beneficiaries of such a ruse.*
That was a stupid idea then, it has become even stupider as they succeeded in putting their "free speech" language into the mouths of billionaire oligarchs, right-wing Supreme Court justices who are taking a wrecking ball to the voting rights and civil rights of Black People, Latinos, Democrats and in 2017, when Nazis rally under the slogan of "free speech".
* You should consider the history of Max Eastman brother of Crystal Eastman, sometimes considered the founder of the ACLU. Max Eastman started out a lefty of the Marxist kind who eventually migrated, as so many Marxists have, to the far right. You can also consider the history of that other founder of it, Roger Baldwin who, as I mentioned a week or so ago, went from a shameless apologist of the Soviet Union in the early years of their murderous campaign of terror to, during the red scare of the late 40s and 50s, requiring an anti-communism oath for members of the ACLU. Behind the successful PR coverup of that organization there is some pretty sordid stuff, especially if you've admitted the real character of Marxism as an anti-democratic ideology which is not really much different from fascism or Nazism in history of murder and violence and denial of rights.
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