Currently the federal government is prosecuting 200 people for being present at the protests during Donald Trump's inauguration, including journalists and street medics. The ACLU's decision to defend the Nazis in Charlottesville didn't magically prevent the government from arresting, harassing and attempting to imprison many peaceful protestors for decades.
This doesn't mean that the First Amendment is useless, clearly. Hopefully it will play a part in helping the protesters, known widely as the J20 defendants, go free. But it also isn't a cure for all social ills. Hate speech hurts marginalized people, and the First Amendment doesn't always and invariably protect them. Free speech advocates say that hate speech "is a price 'we' pay for living in a free society," Delgado told me, but they never stop "to add up the two accounts" or look "to see on whom the price is imposed."
The alternative, Delgado and Stefanic argue, is to start trying to add up those accounts. They point out that courts have already granted relief for torts of outrage or emotional distress in cases like Contreras v. Crown Zellerbach, in which a Mexican American worker was subjected to racist abuse.
The First Amendment was in part intended to prevent government reprisal against critics. But why can’t the legal system prevent one citizen from attacking another verbally? Schools — yes, including state schools — should certainly be able to institute hate speech regulations.
Probably the most popular counterargument to regulating speech is the slipper slope argument. If the U.S. became more willing to restrict hate speech, what would be the result? Would we head down a path towards totalitarianism?
In practice, the U.S. already restricts speech in many ways — the courts have allowed limits on death threats, on libel, on slander, on advocating violence.
Of course not. In practice, the U.S. already restricts speech in many ways — the courts have allowed limits on death threats, on libel, on slander on advocating violence. Many free speech advocates are willing to try to balance free speech harms and free speech goods — except, it seems, when it comes to hate speech against marginalized communities.
Other countries are willing to take the health and safety of their most vulnerable citizens into account. Were the U.S. to properly recognize the danger of hate speech, we wouldn't look like Orwell's "1984." Instead, Delgado told me, we'd "look like France, Germany, The Netherlands, Canada or Sweden, all of whom regulate hate speech but where the political climate is just as free and healthy as our own, if not more so."
The First Amendment is a crucial right, and one which, used thoughtfully and with good will, can help to make our society both more free and more equal. But currently free speech legislation, and free speech ideology, is backward-looking and reactionary. "Free speech!" is a battle cry that has been picked up by neo-Nazis and white supremacists. They see First Amendment advocates as allies —and it's not because they love freedom.
It's long past time we acknowledged that speech directing hatred and vitriol at marginalized people does not advance freedom or liberty. Rather than defending Nazis always and everywhere, no matter what, we need to take a more balanced approach. That approach should include defending the people that Nazis want to murder.