Suppression of speech and political activity from the usual sources
A troubling development in contemporary American politics is the emergence and normalization of authoritarian tendencies. I refer not to Donald Trump and his supporters—the usual object of this accusation—but to the American Left. Prominent voices on the Left are now illiberal by the standards that were developed and defended by liberals, sometimes the same ones, of an earlier generation.
Last month, left-wing news and opinion outlets published headlines blaring that Senator Ted Cruz had defended the use of the Nazi salute. This claim was then predictably amplified throughout the Twitterverse. The headlines, however, and the simple-minded and indignant Tweets that followed, were misinformation designed to discredit Cruz, long an object of the Left’s hatred.
Cruz’s remarks took place in a hearing of the Senate Judiciary Committee at which Attorney General Merrick Garland was testifying. Cruz, in the first place, was not even talking about the use of the Nazi salute to signal allegiance to Nazism. He was instead talking about its use by people who wished to protest—by mocking and insulting—the actions of public officials.
More to the point, however, Cruz was not “defending” the use of the Nazi salute at all. He merely pointed out that its use is, under the prevailing interpretation of the First Amendment, a form of constitutionally protected expression, and that it therefore cannot properly be treated as a reason for a federal investigation. This is not a controversial opinion and would not seem to merit denunciation. Indeed, in his own testimony, Garland immediately agreed with Cruz that the salute is protected by the First Amendment.
There is a serious problem here, beyond the by now very tiresome and predictable dishonesty of much of the American news media. If defenses of First Amendment protections of offensive expression are going to be popularly equated with defenses of the offensive expression itself, then it will, sooner or later, become disreputable to defend constitutional norms of free expression. And as a further result those norms will decay and finally vanish. Constitutional norms cannot live without actual human beings who are willing to uphold them, and such willingness will evaporate if upholding them makes you the object of mass media denunciation.
American liberals used to understand this quite well. The classical, if not cliched, attitude of a liberal has always been to proclaim, “I disagree with what you are saying, but I would defend to the death your right to say it!” Some liberals today might still say that, but few contemporary leftists would.
A second and even clearer example of authoritarian tendencies on the Left also showed up recently. This time the provocation was a television documentary—specifically, Tucker Carlson’s show on the events of last January 6. Having seen only the trailer, some public voices claimed that Carlson’s documentary should not see the light of day.
Lindsey Simmons—a Missouri Democrat, aspiring Congresswoman, and (in her Twitter bio) self-proclaimed “cultivator of Democracy”—responded to Carlson’s promotion of his documentary as follows: “The freedom of speech is not absolute. It can be restricted where it incites imminent lawless action. Tucker Carlson and Fox News are creating propaganda to incite a Civil War. At some point we must use the legal tools available to us before it is too late.”
Simmons is a product of Harvard Law School, and so she knows how to invoke the language of the Supreme Court’s First Amendment doctrines, like “incit[ing] imminent lawless action.” But she either does not understand or is deliberately distorting the First Amendment standards to which she refers. To do what she is suggesting—to prevent or punish the airing of Tucker Carlson’s documentary—would not be using the legal tools available to us. It would be replacing those tools with new tools that are not consistent with the First Amendment standards that have existed for more than fifty years.
The “imminent lawless action” standard was articulated by the Supreme Court in 1969 in Brandenburg v. Ohio. There the Court (unanimously!) voided the conviction of a leader of the Ku Klux Klan who had, in the course of a speech at a Klan rally, made some threatening remarks and who had then been prosecuted under Ohio’s criminal syndicalism statute. That statute made it a crime to advocate the use of “crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
It was not clear that Brandenburg had advocated violence in the words he used. He had remarked rather vaguely and inarticulately that “some revengance” might have to be taken on America’s political institutions. In any case, the Court held that even if Brandenburg had clearly advocated violence, he could not be convicted, because he was not advocating immediate action that was likely to take place. According to the Court, modern First Amendment doctrine establishes “the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Carlson’s documentary offers an alternative account of the events of January 6 than the one has prevailed thus far—and his account is not flattering to the government of the United States. For the sake of argument, give Carlson’s critics every benefit of the doubt and suppose his documentary is wholly a pack of lies. It still could not be touched under the “imminent lawless action” test. For him to be subject to legal punishment, he would have to have advocated illegal actions that are likely about to happen. Did anybody seriously expect that? Did Lindsey Simmons think a civil war might break out because of a TV show?
Does Lindsey Simmons not see that her principles, if adopted, would permit conservative state governments to suppress the speech of left-wing critics of American society? It is common for such critics to say that our “system” must be “torn down,” or to claim that America is guilty of “genocide” or equally egregious crimes. Wouldn’t these be incitements to revolution or civil war? These are the kinds of consequences that ought to be pondered by those who wish to use the power of government to silence those with whom they disagree.
The dangers here are not immediate but are nevertheless real. Ted Cruz is a big boy. He’s a famous person and a United States senator. He won’t be materially harmed by his enemies’ smears. Similarly, there is no danger that Tucker Carlson will be prosecuted for airing a documentary. Most American judges have more respect for existing First Amendment standards than celebrity lawyer/politicians sounding off on Twitter. But our task should be to preserve freedom of speech and debate for the next generation and the generation after that, and that task requires that the left’s authoritarian tendencies be confronted and repudiated now.