Freedom for Speech We Fear and Freedom to Fear It

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In the past few days, I've been asked repeatedly how a liberal free speech advocate reacts to the debate about violent, extremist far-right rhetoric. At first, I instinctively engage in self-censorship, having learned over the years that you cannot criticize inflammatory speech, or worry publicly about its possible consequences, without unintentionally lending support to censorship campaigns. You can't speculate about the possible anti-social effects of anti-social speech without being applauded or condemned for drawing a straight line from violent rhetoric to violent action (which I do not do) and endorsing legal limits on insurrectionary rhetoric (which I vehemently oppose). As a practical political matter, it's very difficult, practically impossible, to question the merits of speech without lending credence to proposals prohibiting it. Still, it's worth noting that news of the shooting left many of us shocked but not surprised, and also worth asking why.  

Ma Nishtana. Why is this moment in our political history (and I hope it's only a moment) different from so many others? There was violent, right-wing extremism in the '90s (reflected in the Oklahoma City bombing) but it hadn't yet been mainstreamed. The radical left indulged in comparably extremist rhetoric as well as actual violence in the 1960s, but, while it helped shape popular political movements, left-wing extremism in the '60s did not take possession of the Democratic Party. Indeed, Hubert Humphrey went down in the 1968 election partly because he stood side by side with Chicago Mayor Richard Daley while police split the heads of protesters outside. Today, the Republican Party is driving under the influence of extremism: some fear offending the base, which others represent. As many have pointed out, Fox News, Limbaugh and other talk radio demagogues have mainstreamed rhetoric that used to prevail mostly on the fringe. 



MORE ON Rhetoric and the Arizona Shooting:
Chris Good: Tea Party Express: Liberals Exploit Shooting
Fawn Johnson: Members Call for Toned-Down Rhetoric
Garance Franke-Ruta: Tea Party Group Blames 'Leftist' for Giffords Shooting

This doesn't mean that we can directly link violent rhetoric to violent action, or that we should restrict speech in the hope of restricting action. Laws against inciting violence should be very narrowly drawn, as the Supreme Court ruled in 1969: Speech is actionable as incitement when it is intended to cause imminent violence and is likely to succeed in doing so. Virtually none of the violent, insurrectionary, right-wing rhetoric I've heard would or should be actionable under this standard. You have a fundamental right to exhort people at a political rally to water the tree of liberty, even if they're legally bearing arms. What you lack is the right to exhort a mob over which you have some influence to engage in a riot, right now.  

But I reserve the right to worry about the possible, indirect effects of speech that I recognize and vigorously defend as constitutionally protected. This is the right that conservative libertarian Glenn Reynolds would unselfconsciously condemn me for exercising -- a right at the core of a commitment to free speech. In his view, when I criticize right-wing rhetoric I am either directly blaming it for violent action or simply trying to score cheap political points. There are apparently no other explanations or justifications for any political critiques of political rhetoric. Excoriating us for expressing concerns about arguably inflammatory speech, Reynolds implicitly derides the fundamental libertarian tenet of freedom for speech you disdain. He effectively demands that we extend the freedom at the expense of expressing the disdain.

No thanks. I worry about the effects of far-right rhetoric today, partly because it's often utterly irrational and fact free. It should not be presumed to incite violence, but it can plausibly be blamed for inciting idiocy; and we live in dangerously idiotic, dysfunctionally anxious times. Demagoguery is legal but not admirable or necessarily harmless, especially in the context of profound economic dislocation, a nasty battle over immigration, a pervasive subtext of fear stirred up by a repressive war on terror, and an aggressive, politically powerful pro-gun movement that has succeeded in legalizing the easy availability and public display of automatic weapons. Moreover, this movement has long projected a revolutionary self-image, demanding unmitigated firearm freedoms in the interests of a natural right and obligation to resist government tyranny, as well as a right of self-defense against crime. If only gun rights advocates and other right wing activists would resist the real bipartisan threats and acts of tyranny that comprise the bipartisan war on terror.

Their opponents on the left, liberals and moderate Democrats contemplating the awful state of our union in the wake of the Arizona shooting, should consider how the repressive post 9/11 shadow government created by Bush and extended by Obama greatly complicates efforts to control the availability of firearms, much less protect against actual threats of violence. (Read Glenn Greenwald's account of the dangers posed to citizens by our government.) In theory for example, it's hard to oppose laws that would restrict the availability of automatic weapons to the mentally ill. In fact, given the unaccountable dictatorial powers exercised by the federal government, it's hard not to worry that laws depriving people of rights if they're labeled mentally ill would not be used against whistleblowers and other dissidents targeted by the security state.

I'll defend the First (and Second) Amendments freedoms enjoyed by Beck, Palin, and other right-wing firebrands. Why won't they defend the freedom to engage in peaceful political advocacy that the Supreme Court recently denied to human rights activists, in Holder v Humanitarian Law Project? Ironically, it's the right-wing Supreme Court -- not left-wing critics of the Tea Party -- that has legalized and constitutionalized the criminalization of political rhetoric.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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