FacebookTwitterGoogle+RedditEmail

Why Fascist Speech is Not Free Speech

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.

More articles by:
Weekend Edition
August 17, 2018
Friday - Sunday
Daniel Wolff
The Aretha Dialogue
Nick Pemberton
Donald Trump and the Rise of Patriotism 
Joseph Natoli
First Amendment Rights and the Court of Popular Opinion
Andrew Levine
Midterms 2018: What’s There to Hope For?
Robert Hunziker
Hothouse Earth
Jeffrey St. Clair
Roaming Charges: Running Out of Fools
Ajamu Baraka
Opposing Bipartisan Warmongering is Defending Human Rights of the Poor and Working Class
Paul Street
Corporate Media: the Enemy of the People
David Macaray
Trump and the Sex Tape
CJ Hopkins
Where Have All the Nazis Gone?
Daniel Falcone
The Future of NATO: an Interview With Richard Falk
Cesar Chelala
The Historic Responsibility of the Catholic Church
Ron Jacobs
The Barbarism of US Immigration Policy
Kenneth Surin
In Shanghai
William Camacaro - Frederick B. Mills
The Military Option Against Venezuela in the “Year of the Americas”
Nancy Kurshan
The Whole World Was Watching: Chicago ’68, Revisited
Robert Fantina
Yemeni and Palestinian Children
Alexandra Isfahani-Hammond
Orcas and Other-Than-Human Grief
Shoshana Fine – Thomas Lindemann
Migrants Deaths: European Democracies and the Right to Not Protect?
Paul Edwards
Totally Irrusianal
Thomas Knapp
Murphy’s Law: Big Tech Must Serve as Censorship Subcontractors
Mark Ashwill
More Demons Unleashed After Fulbright University Vietnam Official Drops Rhetorical Bombshells
Ralph Nader
Going Fundamental Eludes Congressional Progressives
Hans-Armin Ohlmann
My Longest Day: How World War II Ended for My Family
Matthew Funke
The Nordic Countries Aren’t Socialist
Daniel Warner
Tiger Woods, Donald Trump and Crime and Punishment
Dave Lindorff
Mainstream Media Hypocrisy on Display
Jeff Cohen
Democrats Gather in Chicago: Elite Party or Party of the People?
Victor Grossman
Stand Up With New Hope in Germany?
Christopher Brauchli
A Family Affair
Jill Richardson
Profiting From Poison
Patrick Bobilin
Moving the Margins
Alison Barros
Dear White American
Celia Bottger
If Ireland Can Reject Fossil Fuels, Your Town Can Too
Ian Scott Horst
Less Voting, More Revolution
Peter Certo
Trump Snubbed McCain, Then the Media Snubbed the Rest of Us
Dan Ritzman
Drilling ANWR: One of Our Last Links to the Wild World is in Danger
Brandon Do
The World and Palestine, Palestine and the World
Chris Wright
An Updated and Improved Marxism
Daryan Rezazad
Iran and the Doomsday Machine
Patrick Bond
Africa’s Pioneering Marxist Political Economist, Samir Amin (1931-2018)
Louis Proyect
Memoir From the Underground
Binoy Kampmark
Meaningless Titles and Liveable Cities: Melbourne Loses to Vienna
Andrew Stewart
Blackkklansman: Spike Lee Delivers a Masterpiece
Elizabeth Lennard
Alan Chadwick in the Budding Grove: Story Summary for a Documentary Film
FacebookTwitterGoogle+RedditEmail