If rules forbidding hate speech were passed into law and approved by the Supreme Court, they might well prohibit Nazis and Klansmen from marching to anti-Semitic chants, or waving flags with swastikas, or marching in a torchlit parade through the streets, causing some white supremacists to stay home and others to become more radicalized, as happens when groups are prohibited from seeking political remedies.
Meanwhile, Trump and Sessions, the two most powerful law-enforcement figures in the federal government, already draw equivalences between white supremacists and the counterprotesters who meet them on the streets; and they conflate Antifa, a movement that explicitly condones extralegal violence, with Black Lives Matter, a movement dominated by people who reject violence.
Yes, those equivalences are false. And that wouldn’t matter.
Under a legal regime where hate speech was not considered free speech, Trump and Sessions could likely punish words used by members of Antifa and Black Lives Matter. Do you think he’d police their speech more or less vigorously than white supremacists?
Under a legal regime that treated more kinds of speech as incitement, on the theory that Nazis and other white supremacists are pushing an inherently violent ideology, Trump would very likely use the same rules and precedents to target, say, imams at whatever mosques Sessions judges to be inciting Islamist violence; or Twitter activists who tell their followers that punching Nazis is woke. Those whom Trump has taken to calling the “alt-left” would be most at risk.
And the shortsightedness knows no bounds.
“As college presidents try to figure out whether the First Amendment protects conservatives’ right to create political spectacle and instigate violence,” Jennifer Delton writes in the Washington Post, “it might be useful to recall another time when American liberals were forced to sidestep First Amendment absolutism to combat a political foe: the 1940s, when New Deal liberals purged U.S. communists from American political life.” The argument is a perfect illustration of a failure to see what is before one’s nose: an alternative theory of the First Amendment is said by the author to have enabled a bygone faction to purge a leftist minority from political life; and this professor suggests reviving that theory while Trump is in the White House and public university systems mostly answer to Republican legislatures.
It’s been almost 25 years since Henry Louis Gates wrote,
The critical race theorists must be credited with helping to reinvigorate the debate about freedom of expression; the intelligence, the innovation and the thoughtfulness of their best work deserve a reasoned response, and not, as so often happens, demonization and dismissal. And yet, for all the passion and all the scholarship that the critical race theorists have expended upon the problem of hate speech, I cannot believe that it will capture their attention for very much longer... The advocates of speech restrictions will grow disenchanted not with their failures, but with their victories, and the movement will come to seem yet another curious byway in the long history of our racial desperation.
And yet the movement will not have been without its political costs. I cannot put it better than Charles Lawrence himself, who writes: "I fear that by framing the debate as we have––as one in which the liberty of free speech is in conflict with the elimination of racism––we have advanced the cause of racial oppression and placed the bigot on the moral high ground, fanning the rising flames of racism." He does not intend it as such, but I read this passage as a harsh rebuke to the movement itself. As the critical race theory manifesto acknowledges, "This debate has deeply divided the liberal civil rights/civil liberties community." And so it has. It has created hostility between old allies and fractured longtime coalitions. Was it worth it? Justice Black's words may return, like the sound of an unheeded tocsin, to haunt us: "Another such victory and I am undone."
With Trump in the White House, that warning is even truer today. A weakened First Amendment in today’s climate would be marshaled against Trump’s opponents, even as it robbed them of their ability to fight back. It would be a gift to white supremacists, not a blow against them.