in Analysis and Commentary

The First Amendment is broken: Shut down the Klan and Nazis

The First Amendment isn’t absolute. It never has been. I see no more reason to remain absolute in a position supporting a system which preferences speech calling for genocide over speech calling for equal human rights and dignity.


For nearly two decades — in my activism, professional advocacy work and as a journalist — I have been a staunch First Amendment purist. A “free speech absolutist,” if you will.

I’ve defended the rights of all people to write, to speak, to assemble, to protest, even groups like Westboro Baptist Church, anti-choice and anti-LGBTQ protesters with Operation Save America, and, yes, Nazis and Klan members.

It is not a position which holds unanimous support among progressives. Some of my closest friends and acquaintances today absolutely disagree with me on the role of First Amendment and the limits, if any, which should be applied to speech rightly described as hate speech.

But my position has also put me into alliances which have made for strange bedfellows. In the past, including in college where we fought against and successfully challenged so-called “free speech zones,” I’ve worked with Republicans and organizations which have not-so-friendly records when it comes to the LGBTQ community.

My position has been the classical, traditional position taken by most defenders of the First Amendment — if government can limit the speech of one person or group with which it disagrees, then it can limit yours. Therefore, government ought not to be in the business of deciding whose speech is legitimate and whose speech is not. Government should take an entirely hands-off approach and give equal weight and respect to all speech, regardless of its content and regardless of how extreme or deplorable that content might be.

But that isn’t reality and it has never happened. Government has never given equal weight and respect to all speech. Government has not protected the rights of all people. Government has, more often than not, protected the speech of those already in power, those already in the majority and rarely those who are minorities (racially, sexually, politically or otherwise). It’s just the pure reality.

In short, my views on the First Amendment and protections for free speech have begun to shift dramatically. This shifting perspective has been a challenge, especially for someone like me whose career has been built on the promises and guarantees of the First Amendment.

What happened in Charlottesville this weekend is just one of a long string of events over the past couple years which have been chipping away at my traditional view on the issue. Most significantly, my view began its most transformative shift in September, when the Charlotte Uprising took to the streets of Charlotte to protest the police killing of Keith Lamont Scott.

I saw friends, colleagues and acquaintances in that time and in the weeks and months which followed routinely stripped of their First Amendment protections. Local law enforcement and the National Guard ripped the Constitution and all of its First Amendment guarantees to shreds as my friends and acquaintances marched peacefully in the street only to face arrest, police beatings, tear gas, billy sticks and clubs. Over and over and over again.

Compare and contrast that entire experience during the Uprising with how law enforcement and the government has responded to anti-choice protesters who routinely break local, state and federal law at a women’s clinic in Charlotte. No arrests. Few, if ever any, citations. No beatings. No tear gas. No billy sticks and clubs.

Compare and contrast that with how the government responded to the Friday night, torch-lit march of Nazis and Klansmen and the next day’s explosion of violence in Charlottesville.

These are just three examples, but it’s always the same story, be it in Charlotte, Charlottesville, Ferguson or South Dakota.

White people get the protection of the police. White people’s speech — even speech which calls for the mass murder and genocide of entire races and nations — gets protected. White people’s protests go by unhampered by law enforcement, never facing police in riot gear.

People of color? LGBTQ people? They do not get the same privileged, government-sanctioned protection.

The government is already choosing sides in how and when it decides to honor the First Amendment and its many protections.

If Friday’s torch-lit march had been led by people of color or LGBTQ people, it would have been immediately shut down. And that’s not a theory. It’s just a basic life observation born from repeated past experience.

If this weekend’s marches had been led by Muslims instead of white people carrying military-grade assault weapons while calling for genocide, the U.S. government would have swooped in without hesitation, labeled everyone present a terrorist and shut down not only the events themselves, but also the organizations which planned it. They would have raised the alarm of “radical Islamic terrorism” and thrown the entirety of the U.S. Muslim population into the crosshairs of a national witch hunt while putting the nation’s military on high alert.

Instead, all of these things were done by white people. There has been no crackdown. No mass arrest of the organizers. No labeling of the instigators as terrorists.

The Klan will continue to exist unencumbered by government. Same for the National Socialist Movement, the nation’s largest Nazi group. David Duke and Richard Spencer will continue giving speeches inciting their followers to violence. Unregulated Nazi and Klan militiamen will continue carrying their machine guns and organizing for a race war.

If there’s any speech that should be shut down, it is speech which calls for genocide and mass murder. We do it on a personal level — “fighting words” are not protected speech. Individuals are justified in their response, even with violence, if fighting words are used against them. Mass calls for race war and genocide are no less “fighting words,” just on a larger, cultural and societal scale.

If government isn’t going to hold up its end of the bargain and actually do what they say they do — equally respect the speech of all people — then why should I care? Why should I fight for the right of Nazis and Klansmen to speak freely when I already know the government doesn’t provide the same respect or protection to me and other minorities?

I know now with certainty that the way our government currently “respects” the First Amendment is a farce — a racist, xenophobic, white supremacist farce.

And it needs to change.

Call the Klan and Nazis what they are — domestic terrorists. We need no other reason or justification other than their own words and statements, their own actions and their ideology built upon genocide and mass murder and violence.

And when we’re done facing this reality and calling these murderous pigs what they are… shut them down. Entirely. Shut down the Klan. Shut down the Nazis. Do as Europe has done, and ban organizations, movements and parties which hold genocide and violence at the core of their belief system.

The First Amendment isn’t absolute. It never has been. I see no more reason to remain absolute in a position supporting a system which preferences speech calling for genocide over speech calling for equal human rights and dignity.

I’m ashamed it has taken me this long to see something that is so blatantly clear. But, at least I’ve gotten here. The First Amendment has been used as a tool to support a white supremacist government and culture. If we want to change our culture, the First Amendment, how we interpret it, and how we implement its protections — and who exactly we protect — will have to change, too.


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