The growing fascist movement in the United States often claims that it is marching for “free speech” and complains that Antifa and other opponents are violating their rights. Unfortunately, this cynical claim has won some credibility among liberals and even the ACLU. But the law does not protect the advocacy of violence any more than it protects child pornography. These well-established legal principles should be extended to prohibit the advocacy of genocide, the ultimate violence.
Arguing about the free speech rights of Nazis, fascists, and KKK members is a trap. The issue is not speech, it is violence. The fascists do not want to argue with us, they want to kill us.
A brief review of U.S. law demonstrates that fascist advocacy of violence and genocide can and should be prohibited. In 1969 the U.S. Supreme Court ruled in Brandenburg v. Ohio that there is no free speech right to advocate violence when there is a likelihood that violence will actually occur. The Court traced the development of U.S. law from its earlier prohibition of even abstract teaching of the necessity of violence for accomplishing social change to protecting such speech “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The development of the law discussed in Brandenburg occurred primarily in cases overturning the criminal convictions of people found guilty of supporting the Marxist teaching of the necessity for the violent overthrow of governments dominated by the capitalist ruling class. The Brandenburg Court confirmed that while “mere advocacy” cannot be forbidden, “incitement to imminent lawless action” is not protected. In earlier cases, Supreme Court judges, including the great Oliver Wendell Holmes, argued that speech must be protected unless likely to cause a “present conflagration.”
The Supreme Court has ruled that several types of speech are not protected, including child pornography (New York v. Ferber, 1982); fighting words (Chaplinsky v. New Hampshire, 1942); and threats of violence (Watts v. United States, 1969). In 2010, the Court ruled in Holder v. Humanitarian Law Project that Congress could prohibit advocacy “in coordination with or at the direction of” a terrorist organization. The Nazis and other fascist groups should be viewed as terrorist organizations.
The United Nations Genocide Convention prohibits conspiracy to commit genocide as well as direct and public incitement to genocide. The European Terrorism Convention includes similar language. Many countries in Europe and elsewhere outlaw speech that promotes genocide.
The Nazis, fascists, and related groups who marched in Charlottesville, Berkeley, and other places recently went to these cities to commit acts of violence and did what they promised. In their march at the University of Virginia the fascists called for the elimination of African Americans and Jews. Their websites and public statements openly call for acts of violence and genocide. In June 2016 in Sacramento fascists stabbed at least seven people, most of them African Americans.
Cities like San Francisco and Berkeley have no obligation to facilitate acts of violence by hate groups. The fascist rallies should be forbidden. Cities must prepare for litigation by developing research briefs summarizing the statements and actions of the fascist groups and their leaders. The anti-fascist movement must demand that the California legislature and state legislatures elsewhere pass laws forbidding these groups from advocating violence and genocide and increasing penalties for those who commit hate crimes in coordination with or at the direction of a fascist organization. Such laws should also provide for civil penalties to promote private litigation against fascist groups.
These proposals should not alarm the supporters of our constitutional rights of free speech and assembly. We are not proposing that offensive speech, or even speech that many consider hateful because of its abusive treatment of people based upon their race, gender or ethnicity, be outlawed. A free society must tolerate speech that is hurtful or offensive. But no civilized society must or should tolerate behavior by individuals or groups of people that promotes violence and even the total destruction of people based upon their color, gender, religion, or origin.