THIS IS THE LAST PART of my examination of two ACLU's lawyers' dishonest and hypocritical assertions about the First Amendment deals with some of the most serious dangers of their free-speech-press absolute absolutism and revised absolutism on the topic.
Elsewhere in his book, Neuborne contradicts himself. He applauds Madison for understanding that
the habits of thought that enable free people to govern themselves justly and well — respect for individual dignity, a healthy sense of self-worth, curiosity about and respect for others, skepticism about absolutes, toleration of disagreement, and openness to change — cannot thrive without a steady flow of unfiltered information, ideas, and opinions about art, philosophy, literature, science, technology, history, ethics, economics, psychology, sociology, sex, leisure, and business.
But then he argues that “unwilling hearers” should be shielded from “false, offensive, denigrating, or even frightening speech.” He seems oblivious to the fact that one person’s “ideas and opinions” on that list of everything from art to business might be thought to be “false, offensive, denigrating, or even frightening” to someone, somewhere, thereby allowing the government Neuborne is so willing to trust to impose restrictions and limitations.
How dishonestly these "civil libertarians" frame the problem.
THE PROBLEM OF MALIGNANT SPEECH ISN'T THE "UNWILLING HEARERS" OF IT FINDING IT OFFENSIVE IT IS THE ENTIRELY WILLING AND SUSCEPTIBLE HEARERS OF IT FINDING IT WELCOMED AND AN ENCOURAGMENT TO ACT ACCORDINGLY. For Neuborne and Rohde and others to not understand that is the central idiocy of their position, which Neuborne, even in the face of the dangers his former orthodoxy brought, can't really bring himself to abandon.
The problem of lynching was not a problem of those being unwilling to hear the lies and racism and whipping up of the lynch mob, it was the problem of those who wanted to believe it hearing it. The problem of a man who encouraged by pornography feels entitled to rape, torture, murder or merely intimidate women is not a problem of those who find what they do repugnant and offensive. It is the central idiocy of the orthodoxy of "free speech-press" that answers it "if you don't like it you can turn it off" which does nothing to stop the acts of those who do like it and who seek out what instructs and encourages and "justifies" what they want to do, anyway. It is not those who accept the scientific validity of virology and vaccine production turning off the anti-vaxxers and Republican-fascist liars that has produced the catastrophe of the pandemic of the unvaccinated. This line of ACLU-"civil libertarian" lies follows on the Sullivan Decision practice of putting the responsibility for things in the wrong place, identifying the problem as merely one of taste and preference instead of as lies and truth, lies that kill and the truth that saves life.
As just one example, Neuborne complains that “Holocaust survivors living in Skokie, a largely Jewish suburb of Chicago, had no right to be shielded from Nazi marchers who chose to display swastikas and other Nazi regalia in the Jewish suburb precisely because the symbols would upset the elderly Jewish victims.” The most compelling refutation to Neuborne’s position on Skokie and indeed to his entire project of limiting free expression in the name of protecting “unwilling hearers” was made by Aryeh Neier, former executive director of Human Rights Watch, who was born in Nazi Germany and became a refugee when his family fled in 1939 when he was two years old. He was national director of the ACLU at the time of the Skokie controversy. What he wrote on this question in his book Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979) is worth quoting in full:
Because we Jews are uniquely vulnerable, I believe we can win only brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power. The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world’s sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.
Neier’s powerful and compassionate comments reflect the words of the Seventh Circuit Court of Appeals in its decision in Collin v. Smith, upholding the right of the Nazis to march in Skokie:
Our task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.
Neier's and Rohde's position only makes sense if they believe to an unavailable and unattainable level of certainty that it can't happen here. It is a gamble that Nazis, under that name or any other, could not do a re-run of the Shoah, murdering millions, if they did not pretend that it is impossible here, their position would not only be transparently dishonest it would obviously be insanely pathological. It has been my experience in arguing this that American civil libertarian ideologues insist that the German prohibition of Holocaust denial and Nazi propaganda is a terrible wrong and, in fact, even as the bodies in Rwanda were being counted that William Jefferson Clinton's administration were right to not bomb the radio tower that the genocidalists used to instruct the killers on where their victims were to be found. It is a supreme example of amorality in principle turning into the most obvious immorality in practice.
And I do mean that. And I do think it is held, by them, because they have every belief that, for them, it can't happen here. At least for them and their loved ones. They, highly college-credentialed members of the allegedly thinking class certainly can't be unaware that it does happen here for other people.
For anyone even in 2015 to hold the position that we were secure in knowing it could not happen here is to ignore reality on and surpassing the refusal of reality of today's anti-vaxxer-so-pro-Covid virus crack pots. And doing so while practicing lawyers.
We know it can happen here because it has happened here, for Native Americans, for Black People, for Women who have been under a reign of lynching terror (an average of four women a day, so lynched) so long that it just seems like part of natural gender roles. Any lawyer who is Native American, Black, Brown, Asian a Woman who has adopted this insane notion that it can't happen here even as that is the actual history of the United States AND ITS LIVED REALITY NOW has habituated themselves to the orthodoxy of the legal profession and the culture of Constitutional lore of their profession.
And it has happened for briefer periods for other groups throughout our history. If things were now as they were in the 19th century, I'd have included Irish Catholics in that list above, but I doubt it is ever going to be the kind of danger that it, indeed, may be for Jews here, though it has not been in our history.
One of the effects of Nazism being expressed freely is that it has inserted the insane pathology of biological hatred of Jews into the imagination of the susceptible population where it will likely remain as long as there are those susceptible to it in the population. I would bet that danger has grown since the Nazi period, here as well as elsewhere where it was previously rare due to the speech of Nazis introducing it into the cultural history of fascism. They found fertile ground among the indigenous American fascists such as those who the ACLU have championed, the KKK, in particular. A terrorist group which was revived through the speech of the movie The Birth of a Nation, a terrorist group whose primary target was Black People but, also, Catholics and Jews, though ALMOST never with the same violence and to same extent.
If William Brennan were not confident that the levels of discrimination and violence against Irish and other Catholics had not permanently subsided from that of the 18th and 19th century, if Irish Americans faced an increase instead of a decrease of violence due to the anti-Irish, anti-Catholic rhetoric that led to that violence during his time, I doubt he would have said what he did.* If he believed what he said in the face of that reality it would be almost as stupid as a Jewish lawyer asserting the Nazis right of free speech in 1935 Germany. Though, since some American lawyers were opposed to holding them responsible at Nuremberg after the war,** never suspect there is a limit to lawyers, judges and "justices" and so the law's stupidity. We face that stupidity all the time, now, we should not tolerate this as an unchallenged orthodoxy in this case.
If judges and "justices" are as incompetent as those like Brennan assert to judge between clear lies and truths, speech which advocates everything from discrimination against People of Color, Women, LGBTQ people, etc. to mass murder as opposed to equal justice under the law then they are too stupid to be judges and "justices" and have no business ruling on such matters.
Now, with the ascendancy of neo-Nazism which, along with its associated fascist ideologies, dominates one of our two real political parties, one which could take control of the government in less than five years, ONE WHICH RULES THE SUPREME COURT, NOW, anyone who figures it can't happen here and now FOR THEM AND THEIR LOVED ONES is worse than an idiot, they are a willing and entirely informed idiot. I think if any of them hold that allowing Nazis, white supremacists, etc. the freedom to lie us into fascism it is done so only on the basis of an idiotic belief that they and theirs are not the ones put at risk in their gamble done on behalf of media corporations, pornographers, etc. who have lots of money and pay them for their willful and dishonest assertions.
Given Neuborne’s illustrious career as a civil liberties lawyer and all the battles he has fought to protect the First Amendment, it is distressing that he has turned his back on these fundamental principles and instead has devoted his considerable skills and rhetorical gifts to writing a book undermining what Justice Brennan called a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Inevitably, enemies of the First Amendment will relish citing Neuborne’s book in future cases to convince courts to limit or restrict freedom of expression.
Something tells me that if any of these ACLU figures were aware of the arguments I have made her they would not like it being said at all. Never mind it being expressed with the list of manly sounding virtues previously noted. Especially my criticism of the ACLU and its sordid history of enabling some of our most violent racists, pornographers, etc. I don't think they'd welcome the "robust, wide-open, etc." aspect of it, it has certainly been my experience in making these arguments that one of the things I will be told by the biggest, fattest, most free-speechy-free-pressy types will be to shut up.
It's been my experience of the culture of "free speech-press" that the last thing they want to face is a wide open brawl over their assertions which are today's orthodoxy, the one which is so established in Supreme Court law making and the culture of the college-credentialed. They don't want those things being said, at all. Which is why Rohde wrote and the LA Times printed his take down of Bert Neuborne's pathetically weak, merely partial criticism of that orthodoxy.
* It is worth pointing out that when Eisenhower nominated him to the Supreme Court, Brennan was the target of anti-Catholic hate mounted by "The National Liberal League," an atheist organization which was, at that time, under the control of the ultra-racist, near-Nazi, James Hervey Johnson. They pretty much repeated the popular 18th-19th century nativist accusation that a Catholic on the Supreme Court would rule on behalf of the Pope and not the Constitution. Ironic considering his career on the Court. That was a position held by John Jay, among the "founders" who had wanted to exclude Catholics from having the vote. It's clear Brennan never really felt endangered by that remnant of 18th and 19th century bigotry or it would have been something he took into account. There were those who got killed by it, within his own lifetime one of his fellow associate justices, Hugo Black, a KKK member, was put on the court despite using the same line of prejudice to get the killer of a Catholic priest off. But it was never as bad as the racism that was thrown at Native Americans, Black People, People of Color and Women. The Irish definitively became white in the 20th century. White people have never really experienced the same levels of danger that People of Color have, men have never experienced the same levels of danger as women have.
** John F. Kennedy considered Robert Taft's daft opposition to the Nuremberg trials a "profile in courage," on the principle that the Nazis had legalized what they did so they shouldn't be held criminally responsible for their genocides and war crimes. If you want another extreme example of what a huge ass the law can make of itself as a stand of "principle."
Note: I will probably be out for Monday and perhaps Tuesday due to a family matter that I just heard about, so I am posting this last part of this series today. I may be able to post comments so make those if you want to.
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