Two weeks ago Richard Spencer—self-proclaimed white supremacist and key figure in August’s rallies in Charlottesville—once again occupied the city with several dozen neo-Nazi and white-nationalist cohorts. Again illuminated by torchlight, the group marched across the University of Virginia campus as the institution celebrated its bicentennial. They then headed towards the same park holding the statue of Robert E. Lee which was previously the crux of deadly conflict. This time, however, the group only remained for 10-15 minutes in what Spencer termed a “flash-mob.” They then quickly boarded a charter bus and left the city.
This display was a cogent reminder (as if one were needed) that the issues that arose in August have in no way been solved. While the mayor of Charlottesville has put out a statement that the city will be pursuing any possible legal action against the group, the likelihood that this will prove fruitful is slim. As it stands, the American legal system affords great preference to physical harm when it comes to protection of citizens. Nearly all rhetoric is left to the broad category of protected free speech. Here it is words that are protected, rather than people. This fissure is the root from which deeply institutionalized and divisive problems in American society sprout. Nearly all acts of physical violence are punishable by law, and acts that carry political or prejudicial motivation carry the special labels of “terrorism” or “hate-crime.” Physical harm is dealt with harshly, as classically the physical body has been viewed as the vessel of consciousness; if it is damaged then so is the person. Emotional harm is held at a much lower priority, banished to the realm of civil suits. This outwards-in view of harm speaks volumes about America’s dangerous attitudes towards mental health. It is mystifying that our legal system is oriented this way when mental harm can often be longer-lasting and greater in intensity than physical harm.
To be sure, there are legal avenues of protection from speech, but their enforcement is dubious at best and willfully non-existent at worst. I am referring to laws limiting speech on the grounds of inciting violence, and August’s events are a clear example of the lack of enforcement of these laws. As dozens upon dozens of witness testimonials attested, Charlottesville law enforcement did little other than be present to halt rhetoric that within hours left one person dead and many others injured. The words chanted by the Nazis in Charlottesville were inciting violence: the fact that they were not treated as such means that it is time for a long, deep look into our collective system of values.
Outside the sphere of inciting violence, hate speech is protected by the First Amendment to the Constitution. You are more than free to express any number of vile and debased opinions just as those in Charlottesville chose to.
However, to allow hate speech is to deny the agency of those against whom such speech is levelled. To protect hate speech is to relegate those people to the position of passive object without a legal means of defending their dignity. How can I as a Jew be expected to hold reasoned discourse with those who believe my people should be exterminated? If my life has no worth, then of what possible worth is my opinion? I am left empty-handed in that arena. If my opinion as such has no worth to my “listener,” then to what extent is any discourse— much less a civil one— even possible? Civil discourse is reserved for those on equal footing, and when one group does not hold that belief, then the whole dialectical structure tears apart at the seams. They are forced to take a place in a hostile world and are not given the weapons with which to protect themselves. While that increasingly becomes everyday reality, there is only so much that writing articles can do. It is precisely because of this imbalance that so-called “extra-legal” protests have begun to spring up, ignoring the fact that counter-protesters in Charlottesville did in fact hold permits (despite the statements of President Trump). This flaring up is the response of those left with no other practical defense.
When individuals or groups, Black Lives Matter for example, attempt to stand up against this imbalance they are vilified as being opponents of free speech and in favor of censorship- a death blow in talking with the conservative right. The group’s sentiments were purposefully misconstrued in order to misdirect this threat to the imbalance. Their ideas were re-coded as unpatriotic and as hate-speech towards law enforcement. As a result, the Black Lives Matter movement was marginalized as an opposition and to some a terrorist group instead of being represented as what it was: a group advocating against the systematic mistreatment of Black Americans by law enforcement.
When the speech of racists and bigots is protected, those who speak out in spite of that protection are presented as being in favor of censorship. It is easy for one side to point to those defenses as attempts at limiting free speech—a rallying cry of the right hurled towards the left for decades. It is argued that any attempts to limit hate speech can soon become full-on partisan censorship under a unified liberal administration and legislation.
This “slippery slope” argument is specious and sophistic. There is a clear distinction to be made between the banning of hate speech like Nazi chanting and iconography and the banning of political discourse. The drawing of those lines is quite easy. To argue otherwise is to insult the intelligence and character of all involved.
John Rawls, in A Theory of Justice, does argue that society has a responsibility to be tolerant of the intolerant. However, he follows that there is a societal right to self-preservation that must precede tolerance: “While an intolerant sect does not itself have title to complain of intolerance, its freedom should be restricted only when the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger.” When absolute, tolerance loses all meaning—it becomes apathy. Democracy is not built on apathy, in fact its foundation is the opposite. Democracy relies on the caring and investment of its participants. A political system built on apathy is anarchy.
The fact remains that the onus is on Americans to do what our government does not until such time as that changes. In a system where freedom of speech is near-absolute, it is up to the members of that system to set the limitations of tolerance for the sake of self-preservation.
The intolerance of intolerance is not a paradox; it is a necessity in a functioning society.