Consequentialism and the protection of fascist entitlement

In 1977, the American National Socialist Party announced a rally in Skokie, Illinois; a predominantly Jewish suburb, which included many Holocaust survivors and their relatives. The city of Chicago moved to bar the event, prohibited the display of swastikas and Nazi uniforms, and sought to relocate the rally away from Skokie. On behalf of the American National Socialist Party, the American Civil Liberties Union won four court decisions, overturning all the ordinances and injunctions against the rally, eventually arguing in the Supreme Court that the swastika should be a protected form of speech. The court ruled in its favour, some 30,000 members resigned from the ACLU in disgust.

Since the Skokie events, the ACLU has refused to waver from its consequentialist defense of white supremacist and fascist rights to “free speech, petition and assembly.”

While the Charlottesville City Council sought to restrain and relocate the “Unite the Right” gathering—involving white supremacist organisations such as the Klan, and national socialist groups such as the American Vanguard and the Traditionalist Workers’ Party—the ACLU stepped in on their behalf and filed suits to remove restrictions and ensure the gathering went ahead. According to the ACLU filing, unless the far Right was allowed to rally, then their “constitutional rights will be violated, and irreparable harm will result … from preventing or impeding Plaintiffs constitutional rights to free speech, petition and assembly.”

The judge ruled in favor of the organizers of “Unite the Right,” and irreparable harm was surely done rather than prevented. One person—Heather Heyer—who protested the gathering is now dead, more than nineteen others from the counter-protesters were injured, some critically. At least one ACLU-VA Board member has resigned.

The consequentialist argument runs something like this: defending fascists’ freedom of speech is necessary because the consequences of diminishing the principle of free speech, in its ugliest cases, would diminish the principle overall and therefore for everyone. Glenn Greenwald repeated a version of this consequentialist argument recently: “we defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalized and vulnerable in society.” That version is calibrated to appeal to progressive liberals and social democrats in the emphasis it places on the “most marginalized and vulnerable.”

That is, rhetorically, it leverages a routinely unrealized anticipation that ‘free speech’ might protect the “most marginalized and vulnerable in society” into repeated, actual instances of the defense of fascist speech in the present. In doing so, it refuses to interrogate what appears to be a disconnection between a presumably universalizable principle and its unequal distribution. It invites an image of the law—including the laws which protect speech—as a neutral instrument, a procedural umpire, shaped by principles of universality, from its premises to its imaginary consequences. Emotionally, it invites us all to share in a non-existent ideal community which can presumably accommodate both fascists and the most marginalized. But it cannot explain why, historically and materially, that tends to not protect the most marginalized–in large part because liberalism is determined to erase a consideration of the conditions and history of ‘speaking freely.’

The weaponization of the abstract liberal tenet of ‘free speech’ both by and in defense of the far Right in recent years is both remarkable and, at the same time, not that surprising if we situate it within the history of American liberalism. Still, it has gone well beyond First Amendment debates in the United States, is echoed in objections to ‘political correctness’ and ‘call-out culture’ which seek to defend expressions of the worst bigotries on the grounds of ‘speaking one’s mind freely.’ It has become a fairly routine shield against criticism of the far Right. It is the abstract codification of Trump’s appeal to that far Right: “we like him because he tells it like it is.”

But the reason why liberals prefer to put the emphasis on consequences is it averts our attention away from premises and why, in the line that algorithmically runs from premises into consequences, in practice ‘free speech’ arguments tend to shield the most powerful from critical speech by the most marginalized and vulnerable. Greenwald’s current defense of the ACLU might well have invoked “the most marginalized and vulnerable,” but the practical implications of his argument is far more continuous with his previous insistence that a ‘coherent national identity’ is really not racism but, instead, a properly Jeffersonian response to “unmanageably endless hordes of people pour[ing] over the border in numbers far too large to assimilate.”

A statue of Jefferson, the master of Monticello, still looks down over Charlottesville, Virginia. American liberalism, like its architecture, took much of its philosophical inspiration from ancient Greece. There, the right to ‘speak one’s mind freely’ was considered to be the natural condition, indeed the ‘natural liberty’ of noble citizens—that is, those who owned property, including slaves. The history of American political liberalism has always vacillated between this restricted, idealized concepts of ‘natural liberty’ and the expansion of civil rights to those who were once regarded as property or ‘sub-human.’ When white supremacists and fascists talk about “taking back our country,” they mean returning to that presumably natural order, one which included a concept of ‘natural liberty’ constructed through the structural negativity of the existence of a ‘natural slavery.’ As the now-senior advisor to Trump put it in a student speech for class president, “Am I the only one who is sick and tired of being told to pick up my trash when we have plenty of janitors who are paid to do it for us?!”

But if we refuse to accept the tacit premise of a natural entitlement which is always an encoded shield for the preservation of property (and some people as property), then that opens up the discussion of ‘free speech’ into another consequentialist argument. Since fascist speech is always geared toward the destruction of the material possibilities of marginalized and vulnerable people to ‘talk back’ as even a limited variant of legal personhood—or worse, live—then it has no call upon some general principle of free speech. We could, to put it very bluntly, take fascists seriously when they say: “us fascists … don’t believe in freedom of speech. You can say whatever you want. We’ll just throw you in an oven.”

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