White Supremacy is having a good month: On March 5, the ACLU put its weight behind Pro Football Inc’s fight to keep its Washington Redskins trademark. A few days later, legal scholars from the right and permissible left along with The New Republic scolded Oklahoma University for expelling two SAE fraternity members who led the sickening racist song immortalized on viral video. That same week, notorious Islamophobe Pam Gellar won her battle to force Philadelphia to display bus signs featuring a photo of Hitler and proclaiming “Islamic Jew Hatred: It’s in the Quran.” Five days ago, the ACLU filed a brief in support of Confederate flags on license plates.
Of course, for the self-styled First Amendment absolutists among us it’s not white supremacy that’s winning here, but free speech. “The first attacks on free speech always come at the fringe,” they insist. “That’s where it needs to be defended.” First Amendment absolutists have been saying this at least since 1977, when the ACLU won the American Nazi party the right to march through Skokie, Illinois, where an estimated one in six residents was a Holocaust survivor. In the ensuing 38 years, civil libertarians have ostentatiously supported cross burners, churches that promote race war, right wing Christians disrupting Arab festivals, and picketers of LGBT funerals, admonishing as authoritarian anyone who thinks their view of speech rights is imprudently simplistic at best.
While white supremacists were having such a good few weeks spreading freedom for all, Ramsey Orta, the man who captured Eric Garner’s murder by NYPD cops on video, was still struggling to make bail. Orta is enmeshed in a Kafkaesque nightmare of what looks like sadistic state reprisal against his supremely brave, selfless act. A murdered black man and a latino in a cage for bearing witness to the crime is what you could call a white supremacy twofer, as well as a complete disaster for civil liberties.
Despite the obvious First Amendment implications of a vendetta against Orta, the ACLU and its New York branch have seemingly done nothing on his behalf — searches on their websites don’t yield one mention — and as far as I can tell none of the First Amendment cult’s leading lights has written about it. Orta’s civil liberties don’t interest The New Republic like those of racist frat boys. But at least Time.com won a World Press Award two weeks ago for a video consisting almost entirely of Orta’s footage and his words in voiceover. So — if you overlook how that award embodies the parasitic relationship of press to whistleblowers, rich to poor and white to dark– there’s that.
Though forty years of contrarian First Amendment advocacy hasn’t produced obvious benefits for the likes of Orta, it’s doing quite a lot for corporations, whose ingenious lawyers, after establishing ACLU-supported corporate personhood, have found the First Amendment endlessly useful as an instrument of deregulation. I can’t do justice to the orgy of litigating going on in this realm, but here’s a sample: the National Labor Relations Board can’t compel your employer to hang a poster informing workers of their rights; however, your employer can lobby you on how to vote and when to call your congressperson. There’s an effort afoot to remake corporate lies as First Amendment protected opinion, and mandatory disclosures an unconstitutional burden. Considering corporate and shareholder demographics, corporate personhood is indisputably a win for white supremacy too.
Surely there is an onus on advocates to demonstrate that a tactical alliance with white supremacists and corporations, that clearly benefits white supremacists and corporations, produces commensurate benefits for people like Ramsey Orta. But if you want to make a First Amendment absolutist lash out, lie or robotically recite bromides, just demand conclusive evidence of such benefits. They can’t produce it, because no such evidence exists.
There are some, like Radley Balko, who, when confronted with this, will insist that we should support racist speech on general principle, regardless of what it does for anyone else, but this is a justifiably tough sell. Surely if First Amendment victories for white supremacists or corporations don’t meaningfully fortify the rights of people of color and anti-racists, any engagement with their cause should aim toward their defeat. It’s a really rather bizarre state of affairs when reluctance to ally with fascists in pursuit of freedom strikes otherwise intelligent people as repellently authoritarian, but that’s the state we’re in.
I’ve discussed a lot of this before in various issue-focused posts. What follows is an attempt at a more detailed, general critique, which examines the folly of Free Speech Absolutism in relation to white supremacy. At the outset I’d like to make a few things clear. My objections to Free Speech Absolutism have very little to do with laws and regulations. I am extremely ambivalent about Hate Speech laws. I am less ambivalent about Hate Crimes Law, though I don’t like laws generally since their primary use is to oppress and discipline people with very little power.
My main objection is to the doctrine of free speech absolutism. In addition to directing the attention, resources and goodwill of decent people to organizations and individuals that would imprison and murder them if they could, it perniciously minimizes the genocidal and avaricious politics with which it makes common cause; it promotes a view of power and social change so ahistoric and infantile it qualifies as magical thinking; and it promotes libertarian as opposed to communitarian values and politics. By virtue of this doctrine’s wide adoption and promotion by revered adherents, it has a uniquely corrupting effect on political discourse and practice as a whole.
As one would expect from an extremely dishonest doctrine that is taught in public schools and enjoys avid support across political lines, it serves power far more than it serves anyone else.
- Frat Boys, Redskins and Ramsey Orta
- There’s No Such Thing as First Amendment Absolutism
- Magic Paper Theory
- The White Supremacy Difference
- Precedent Hardly Matters
- Putting the Libertarian in Civil Libertarian
- Free Ramsey Orta