Limitations of Freedom of Speech

I became disillusioned with the American Civil Liberties Union (ACLU) in 1978. That was the year that the ACLU backed a neo-nazi march in Skokie – swastikas and all – claiming that it was upholding the very precious right of free speech, no matter how odious the content of the particular free speech. The march was soon downsized (canceled) in Skokie and a rally was held in Marquette Park, a locale much more tolerant of neo-nazis. I was one of many non-violent protesters in Marquette Park.

The neo-nazis march in Charlottesville, swastika flags unfurled, was abhorrent to any Jew. The sight of marchers, with confederate flags flying, must be equally abhorrent to African Americans. In defending the neo-nazi right to march as an expression of free speech, the ACLU confirmed my disillusion. Even more upsetting was the attempt of president Trump to cast equal blame for the murder of a counter demonstrator on left and right wing thugs. It was the right marching with nazi swastika flags. A right wing thug murdered the counter demonstrator.

Why did the ACLU feel a necessity to protect the neo-nazi right to assemble? What are legitimate limitations on free speech? Let’s start with the First Amendment – ‘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.’

To understand what free speech means in practice, the following Supreme Court decisions are relevant:

Chaplinsky v. New Hampshire (1942) The First Amendment did not protect “fighting words” which, by being said, cause injury or cause an immediate breach of the peace.

Brandenburg v. Ohio (1969) The Supreme Court held that the First and Fourteenth Amendments protected speech advocating violence at a Ku Klux Klan rally because the speech did not call for “imminent lawless action.”

R.A.V. v. St. Paul (1992) A criminal ordinance prohibiting the display of symbols that “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” was unconstitutional. The law violated the First Amendment because it punished speech based on the ideas expressed.

Virginia v. Black (2003) A blanket ban on cross-burning was an unconstitutional content-based restriction on free speech. States could ban cross burning with intent to intimidate, but the cross burning act alone was not enough evidence to infer intent.

It is when speech may (1) cause injury or cause an immediate breach of the peace (2) call for ‘imminent lawless action.’ or (3) ‘intent to intimidate’ that the courts step in. Otherwise free speech is upheld.

The German Criminal Code limits freedom of speech in a healthy way. It criminalizes incitement of hatred in Section #130. The language is explicit and specific. (How strange it is for a Jew to admire the German criminal code. But they understand the dangers of inciting hatred.)

Section #130 reads in part:

(1) Whosoever, in a manner capable of disturbing the public peace -1.incites hatred against a national, racial, religious group or a group defined by their ethnic origins, against segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population or calls for violent or arbitrary measures against them; or

2.assaults the human dignity of others by insulting, maliciously maligning an aforementioined group, segments of the population or individuals because of their belonging to one of the aforementioned groups or segments of the population, or defaming segments of the population,

shall be liable to imprisonment from three months to five years.

With the omnipresence of the Internet, which is a super megaphone for all causes, including those that incite hatred, the Supreme Court should broaden its understanding of ’cause injury or cause an immediate breach of the peace’ and ‘imminent lawless action’, and find that the inciteful behavior described by Section #130 of the German criminal code is not protected by the First Amendment.

As for the ACLU, it is not bound to defend all freedom of speech cases. It should husband its resources and not defend freedom of speech cases that are criminal behavior under the German incitement laws. Just refusing to defend cases in which there is a display of guns is not is not enough. A guiding principle should be – those who would destroy the civil rights or civil liberties of others should not be defended by the ACLU.

Concerning thugs: right wing thugs and left wing thugs are just thugs. Right wing thugs were the instigators and responsible for a murder. Nevertheless, that does not justify left wing thugs.

Turning to Germany again, consider the collapse of the Weimar Republic which led to the rise of Hitler. Although hyperinflation was the the primary cause of German disillusionment with Weimar democracy, the almost daily street fights between nazi thugs and communist thugs were a major contributory factor. Democracy is a precious thing – but increasingly fragile. Let’s defend it. Speak out against thuggery!

Does the rhetoric of president Trump make a more permissive atmosphere for violence. To that point, here is part of a newsletter that we wrote in March of 2016 – long before the election. It was titled

The Talmud and Trump

In the Tractate of Sanhedrin, page 93a, there is a story that resonates with today’s politics. My translation is far from literal and there is a lot of elision. The literal text is X-rated and not appropriate for our family oriented newsletter. The text goes as follows:

Concerning Achav the son of Koliah and Tzedkia the son of Masseih, HaShem said, ‘All of the exiles of Babylon will use their names as a curse saying, ‘May G-d make you like Tzedkia and Achav whom the King of Babylon burned in a furnace.’

What did they do? They behaved licentiously, going so far as to make improper suggestions to the daughter of Nevuchatnetzer, the King of Babylon. She told her father, who stated, ‘The G-d of Israel hates unchastity.’ Nevuchatnetzer then questioned them and asked, ‘Who told you to behave in this way?’ To which they responded, ‘The Holy One, blessed be he.’ Nevuchatnetzer responded, ‘I have asked Hanania, Mishael and Azaria (a.k.a. Shadrach, Meshach and Abednego, the three companions of Daniel) and they told me that such licentious behavior is forbidden.’

Achav and Tzedkia responded, ‘We’re prophets too and that’s what G-d told us to do.’ Nevuchatnetzer then said,’ I have a really effective app for testing people who claim to be prophets – throwing them into a fiery furnace and seeing if they survive. Hanania, Mishael and Azaria passed the test, now it’s your turn.’ Tzedkia and Achav responded, ‘But there were three of them and there are just two of us.’

Not to be put off, Nevuchatnetzer said, ‘OK, pick anyone that you want and I’ll make sure that he shows up.’ They responded, ‘Joshua, the High Priest’, figuring that the great virtue of Joshua would save them. Into the furnace they went, Achav and Tzedkia went up in smoke and the garments of Joshua were singed.

Nevuchatnetzer asked Joshua, ‘How come your clothes were singed? After all, Hanania, Mishael and Azaria emerged from the furnace completely unscathed.’ To which Joshua answered, ‘There were no wicked people with them and I had two wicked people with me. As people say, ‘If two dry logs are put in a fire together with one wet one, the wet one gets burned too.’

From this we learn a great lesson – when destructive powers are unleashed, they are hard to contain and may harm the innocent along with the guilty.

The Trump candidacy is a candidacy of the destructive powers. Unleashing hatred of Mexicans and Muslims in order to build a base constituency is evil. Beatings of protesters is a frightening phenomenon. It is even more frightening when the candidate (Trump) condones the beatings by saying that he will cover the legal fees of the beaters. A threat of riots in Cleveland by Trump, if he is not nominated, is a reminder of of the chaos that we suffered in Chicago during the 1968 Democratic convention. 1968 has another claim to infamy. It was the cursed year of political assassination – Martin Luther King and Robert Kennedy. Let us hope that the destructive powers now being unleashed by Trump will not lead to assassinations in 2016.