On Wednesday, a bipartisan group of Senators will introduce a resolution on white supremacism.
Condemning the terrorist who murdered Heather Heyer in Charlottesville, the resolution is eloquent and morally persuasive. Still, a couple of lines have me concerned.
First off is the resolution's reference of "White supremacists, White nationalists, neo-Nazis, the Ku Klux Klan" and its associated call for "the Secretary of Homeland Security to ... prevent those groups from fomenting and facilitating additional violence."
While I support legal action against groups "facilitating" violence, to me, "white nationalists" and "fomenting" are unduly broad and subjective terms. After all, what is a "white nationalist?" Some will believe it includes writers such as Pat Buchanan or even Donald Trump, who express concerns about the perceived decline of white America. And if that's the case, it's not too much of a leap to believe that some may regard this resolution as a call to monitor these "fomenting" individuals more closely.
But what is criminal fomenting? The law says it is actions intended to spark imminent unlawful violence, and likely to achieve that effect. Yet as we see on college campuses and in the more fanatical strains of the anti-statue movement, others clearly take the European legal perspective and view criminal "fomenting" as including the simple articulation of a viewpoint. Case in point; as I've documented, one respected professor recently opined that hate speech is violence.
In that vein, I fear that these words in the resolution will empower those who seek to restrict speech.
The next line that concerns me is the resolution's call to "use all resources available to the President and the President's Cabinet to address the growing prevalence of those hate groups in the United States."
Again, what does this entail? The subjective words matter because many hate groups are not breaking the law, they are simply speaking their idiotic viewpoints. Take the American Nazi Party. Its website specifically opposes membership applications from "Those who are simply intent on pranks or causing trouble..." and uses the theme song from Conan the Barbarian for its recruitment video. While its ideology is unpleasant and its musical taste odd, the American Nazi Party is operating legally. But the call for the government to "use all resources" to counter the "growing prevalence" of "hate groups" would seem to include members of groups like the American Nazi Party. Such content-determined government action against free speech is unconstitutional.
Nevertheless, restrictions on speech are gaining considerable support on the Left.
We have to be careful here. American speech exceptionalism requires our trust in many viewpoints. Moreover, at the margin, the first amendment does not exist to protect majority viewpoints, it exists to protect extreme viewpoints. As Chief Justice John Roberts has explained in ruling on the 2011 case of Snyder v. Phelps, "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and -- as it did here -- inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course -- to protect even hurtful speech on public issues to ensure that we do not stifle public debate."
Greater government action against criminal organizations is good, but we must guard against speech authoritarianism.