Recalibrating the Tolerance-Intolerance Scales

In the 1980s, I spent three wonderful (non-consecutive) years serving as a (very part time) fellow at Sh’ma Journal: A Journal of Jewish Responsibility. The magazine then was under the editorship of its founder, the late Rabbi Dr. Eugene Borowitz, one of the leading Reform theologians of the past century.

While Sh’ma had a decidedly liberal bent, it also was known for providing a forum where voices from all segments and ideologies of the Jewish community could be heard on a wide range of controversial topics.

Once, because of the fierce commitment that Gene (as he asked me to call him) had to the concept of freedom of expression — based on the belief that, in Holmes’ words, “the best test of truth is the power of the thought to get itself accepted in the competition of the market” — he published a piece by Meir Kahane, every word of which he vehemently disagreed with — including, probably, the commas and periods. This evoked a strong reaction from many Sh’ma readers, who were dismayed to see Kahane’s words in their beloved magazine. Some of them even canceled their subscriptions over this issue.

When I discussed the controversy with Gene, he told me that he had spoken with Kahane about it. In that conversation he asked whether, if Kahane ever became Israel’s Prime Minister, he would allow a Borowitz article to be published in an Israeli newspaper. Kahane replied (and I paraphrase): “I understand, Prof. Borowitz, that you have certain principles, and I respect the fact that you live up to them.

“I’m sure you understand that I too have principles and trust that you would respect the fact that I would live up to them as well.”

The issue that Prof. Borowitz and Kahane were cleverly dancing around is the question, as Michael Walzer articulated it: “Should we tolerate the intolerant?” As you might expect, the answer is not straightforward.

The philosopher Karl Popper even gave a name to this dilemma: the paradox of tolerance. As he put it: “Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed and tolerance with them.” But he added the following caveat: “I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise.”

John Rawls seemed to come to the same conclusion, though starting from the opposite direction. He posited that a just society must tolerate the intolerant, for otherwise it would be intolerant and thus unjust. Justice is worth the price of the paradox. But he too added a caveat; that society’s right of self-preservation supersedes the principle of tolerance, and thus, when society “sincerely and with reason believes that its own security and that of the institutions of liberty are in danger,” it cannot afford to tolerate the intolerant.

So the answer to Walzer’s question for some seems to be a qualified “yes”; we do tolerate the intolerant unless intolerance seems to be gaining the upper hand. In that instance, however, preservation of liberty requires, paradoxically, intolerance.

In constitutional terms, tolerating the intolerant is similar to the protections the First Amendment gives to intolerant and evil ideas. And that ideal was put to the test as we all watched the frightening sight of Nazis and white supremacists recently marching in Charlottesville with torches and swastikas, toting assault rifles, and chanting anti-Semitic and racist slogans. African-Americans were beaten, shots were fired, shuls were threatened. Can we afford to tolerate this type of intolerant hate group?

As a lawyer, I’m trained to look for precedent, and so I did. In 1977, the ACLU successfully defended the Nazis’ right to march in Skokie. I supported both the ACLU’s and the court’s decisions, and I continue to do so. But lawyers also are trained to distinguish cases, and the Nazis/white supremacists march 40 years later is significantly different from the one in Skokie. The reason can be summed up in one word: Heller — the infamous Supreme Court decision that found a constitutional right for individuals to bear arms.

Heller, of course, remains the law until it’s overturned (“until” being a prayer and not a prophecy). But as long as it is the law, it seriously changes the First Amendment dynamic. When they were marching in Skokie, the Nazis wore uniforms emblazoned with a swastika — but they didn’t bear arms. They bore only words and symbols — hateful, vile, stomach-turning words, to be sure — but words their opponents could and did challenge with their own words of equality, justice, and peace.

And in that marketplace of ideas, the good guys won the battle.

In Charlottesville, though, rather than words against words there were guns against words. Thus, while our America ethos is based, in large part, on the ideal of tolerating those who express ideas the majority disagrees with, that may not be the case when they are expressed by armed militants. When guns are brought into the equation, our “security and the institutions of liberty are in danger,” and thus the right of self-preservation may supersede the principle of tolerance. As Mark Stern and Dahlia Lithwick recently wrote, bringing assault rifles to Charlottesville “effectively silenced the many people who’d assembled to peacefully express their opposition to racism,” which diminished First Amendment values and supplanted discussion with disorder.

The pen may be mightier than the sword in the world of aphorisms, but in the real world, while words can educate, illuminate, inspire, and convince, the sword — or its 2017 equivalent, the assault rifle — can, and does, kill.

We must demand a fair fight, and Heller has corrupted the battlefield.