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.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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