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an open question: should tolerance always be tolerated?

September 16, 2012

While I think Glenn Greenwald makes some good points regarding the prevalence of double standards among free-speech advocates who also support the censorship of political opinions they find disagreeable in his article “Conservatives, Democrats and the convenience of denouncing free speech,” I’m disappointed that he doesn’t address things like the fighting words doctrine, which, established by a 9-0 decision in Chaplinsky v. New Hampshire, holds that “insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of the peace” are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem,” take a closer look at the closely-related incitement doctrine, etc.

Even though subsequent Supreme Court rulings have since narrowed what’s considered ‘fighting words’ (e.g., Street v. New York, Cohen v. California, etc.), and concluded that “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action” (Brandenburg v. Ohio), it can’t be ignored that a constitutional line has been drawn between free speech and non-protected speech, e.g., speech that’s intended to, and will likely cause, immediate breach of the peace (acts of violence). And I think that advocates of censorship, at least in certain instances, have more ground to stand on, intellectually as well as legally, than Greenwald is willing to admit.

The real question, in my opinion, is whether this is due to the vagueness of the line drawn by the Supreme Court or some kind of inherent weakness in the institution of constitutionally protected free speech itself. In other words, is there an inherently repressive aspect to liberal ideas of, and basis for, free speech rights (as some coming from a Marxist perspective might argue, for example), or is this repressiveness (i.e., grounds for censorship) simply due to conflicts in the Supreme Court’s interpretation of the First Amendment? Or even more provocatively, does America’s institution of free speech allow dominant ideas and forms of expression (i.e., those sanctioned by the state and/or ruling class) to create a background in which progressive (or one could even say radical) ideas are limited “even before the courts create whatever explicit limitations they devise,” as the authors of “Codes of Silence” suggest Herbert Marcuse argues in “Repressive Tolerance”?

To phrase it yet another way and add another dimension to the discussion, does censorship = (or lead to) freedom in certain contexts, or is this simply Orwellian doublespeak for a possibly well-meaning but ultimately repressive attitude towards tolerance? Should tolerance extend to all things equally (as some die-hard free-speech advocates would argue), or should a distinction be made between what Marcuse called “liberating tolerance,” which enlarges “the range and content of freedom” and is “intolerant toward the protagonists of the repressive status quo,” and “indiscriminate [or repressive] tolerance,” which, under the current societal structure, allows “the expression of ‘false words and wrong deeds’ to work against the attainment of ‘liberation’ and of true ‘freedom and happiness'” and becomes “an instrument for the continuation of servitude” by those in power?

To use an extreme example, take the Nazi’s racist ideology, which made being Jewish dangerous and ultimately a death sentence in Germany: Should their expression of anti-Semitism be defended on free speech grounds, or would it better (and more moral) to oppose and actively attempt to suppress such ideas? Should Hitler’s Mein Kampf be defended, or should it, too, be opposed and suppressed?

In essence, does being unequivocally pro-free speech mean sometimes being placed in a seemingly contradictory position, such as defending the Nazi’s right to promote their racist ideology and rhetoric of violence against the Jews, which helped turn German society against Jews and make the Holocaust possible, while at the same time supporting military violence against them for the consequences that arose out of supporting a situation where such ideas became dominant in the first place? A legitimate question emerges, I think: Is it ever justifiable (at least in certain situations) to suppress free speech, or should we always be tolerant of everything? For me, it’s still an open question.

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