What The Germans Can Teach Us About The Limits OF Free Speech
All of America is responsible for Charlottesville. We may not have marched with the white supremacists, or driven the car that killed Heather Heyer, but we have clung to reckless notions of unlimited free speech, and to a culture of denial under which their fanaticism has for too long festered, and which now empower their villainy.
Charlottesville is only the beginning.
America needs to have an honest conversation about free speech and our legacy with white supremacy. It is time for Americans to finally heed our own history, and silence in our public spaces those malevolent voices that threaten to rise again and drag us back down into the dark depths of racial tyranny.
The Germans can teach us how.
THE GERMAN MODEL: DEFENSIVE DEMOCRACY
Germany is a strong and stable constitutional democracy. Like America, it champions the freedom of speech that is, among others, the cornerstone of a democratic society. It has enshrined those rights in its constitution. But it has long since abandoned the notion that those rights should extend to Nazis.
Unlike Americans, Germans take a more measured stance to the question of free speech and censorship, rooted in a philosophical approach called “streitbare Demokratie” or “defensive democracy.” Karl Popper succinctly summarized this approach in his writings on the paradox of intolerance:
“Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them….We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant.”
Cognizant as they are of their history with genocidal hatred, and dedicated as they are to prevent its revival, the Germans have taken legal steps to stamp it out before it can grow.
To this end, Nazism is outright banned as “anti-constitutional,” and it is illegal to found or belong to any Nazi party; such parties can be banned and publications in support of them are put on an Index of Harmful Material, where their sale and distribution is severely limited or banned entirely.
The Germans have also incorporated several laws into their penal code, the Strafgesetzbuch, to curtail the public expression of Nazism and hate speech. Among them, Section 130 outlaws racist and anti-Semitic hate speech and “incitement of popular hatred” (or Volksverhetzung), punishable by up to 5 years imprisonment. Subsection 3 of the law outlaws Holocaust denial or gross trivialization of international crimes and classifies such speech as an “insult to personal honor” (i.e. of every Jew in Germany).
Section 86a prohibits the use of symbols of “unconstitutional organizations” outside the context of “art, science, research, or teaching” with up to 3 years imprisonment or a fine. Interestingly, the law intentionally does not identify particular symbols, so that it can remain responsive to the creation or adoption of new symbols as images of hate, and there is no exhaustive list of the banned symbols. Nor is the prohibition tied to the symbol itself, but rather to its context. A Swastika, for instance, is outlawed if it is used in support of Nazism, but not if it is used in an educational or religious context (such as a South Eastern or East Asian religion).
Germany’s culture also plays a vital role in defending its democracy. Unlike America, there are no monuments that glorify their villains, only those that honor their victims, so that people will be reminded of the consequences of intolerance wherever they go. Over 2000 memorials preserve the horrific nightmares of its past for visitors to bear witness. And an education system that places special emphasis on the Holocaust ensures that every generation will know how it all happened. Taken together, this fosters a culture of collective responsibility to reject hate and confront their history.
The country isn’t perfect. It is still plagued by Islamaphobia and xenophobia; its terrible history with colonialism is still an unspoken and whitewashed subject; and many have accused the NDP party of having Nazi sympathies. But the country’s commitment to facing its past, and protecting itself by constraining the intolerance that has shaped it, is worth emulating — now more than ever.
THE DANGER OF UNLIMITED FREE SPEECH
Like Germany, America’s sordid history with white supremacy has left us susceptible to its vicious impulses. And yet, unlike Germany, we continue to expose ourselves to this poison in the name of our unlimited right to free speech. In the face of violent hatred, however, such a dogmatic approach is not constructive.
Free speech advocates like Oliver Wendall Holmes have long believed that hatred will be drowned out amidst the free competition of an “open marketplace of ideas.” But it is precisely in such environments, where the loudest and most shocking voices often garner the most attention, that the voices of hatred can actually be amplified. A free, open, and healthy public discourse is indeed vital for a stable democracy, but blind faith alone in the marketplace of ideas is insufficient to moderate the moral conscience of mankind. It failed to stop the Nazis; that is why the Germans now have concrete measures to hinder the rise of a tyrannical majority. It is failing us now.
Overt white supremacy is on the rise. Since 2000, the number of hate groups has doubled from roughly 450 to over 900. They are responsible for more acts of terrorism in America than Islamist extremists. They helped elect Trump. Now, emboldened by their president, they are starting to organize. Like cancer, they will just keep growing and spreading if left untreated. We need to treat white supremacists like the catastrophic threat that they are, and not like the nuisance we wish they were. Denial has never solved anything.
But that is what America does best. Charlottesville is the product of a nation that believes we have “moved on” from racism (how many of us have lamented that, “this is 2017!”?) even as we maintain Confederate monuments, whitewash our shameful history in our schools, and ignore the manifold realities of institutional racism. It is the product of a nation that has been in deep denial about our problems for a long time.
Hatred is not a phase we can just “grow out of.” Hatred is an intoxicating drug, and America was born addicted to white supremacy. As long as we remain in denial of our addiction — as long as we enable its expression — as long as we preserve images that glorify its legacy — as long as we whitewash its history — we will forever be in danger of relapsing. White supremacy cannot be overcome while tolerating a little bit of it. It’s like trying to overcome alcoholism while living above a bar.
It is certainly true that we already have plenty of constitutional amendments to outlaw the racial tyranny that the prophets of white supremacy preach. But laws are only as strong as the people who abide them. In the hands of people who revere them, they are as strong as steel. But in the hands of white supremacists like Donald Trump, they are as weak as a mound of sand against the rising tide.
Pardoning Joe Arpaio is only the latest in a series of actions that displays Trump’s utter contempt for the rule of law. Seven months into his presidency and the Justice Department has already said that the Civil Rights Act doesn’t prohibit discrimination against gay and bi-sexual employees. ICE agents are scouring the country in search of undocumented people to deport. And emboldened neo-Nazis terrorize our streets, safe in the knowledge their President will not condemn them. And on and on it goes.
Defensive democratic laws are intended to cultivate a citizenry that rejects hate, and to prevent those who embrace it from reaching a position of power where they could change or undermine the law. We simply cannot wait until white supremacists like Trump and Sessions have already reached the halls of power to stop them — because by that time it is surely too late. Clearly our laws are in dire need of such safeguards.
I am sure critics will raise the specter of a slippery slope. They will raise fears of the potential for abuse and point to other “radical” ideologies that could easily be attacked. But white supremacy cannot be falsely equated with other “radical” ideologies. Its commitment to violent bigotry, oppression, persecution, and genocide stands in singular and sinister isolation. It should be possible to tailor our laws to restrict its, and only its expression.
Eleven other democracies have adopted defensive democratic laws like Germany’s that limit the free speech of undemocratic groups, including France, Belgium, Austria, and South Korea, and not one of them has descended into the despotism that this “slippery slope” prophesizes. Not one of them has exploited these laws — narrowly tailored as they are — to suppress the expression of other “radical” ideologies. I understand the fear that makes these slippery slope arguments so compelling, but it simply has no basis in reality. Indeed, it is a peculiar kind of pessimism that believes that American democracy cannot survive without white supremacists where others have. After all, it must surely be true that a democracy that cannot survive without white supremacists is already broken.
Fortifying our democracy with defensive democratic laws while removing some monuments won’t be enough to end white supremacy as long as its pernicious roots remain embedded in our institutions. But a nation such as ours, conceived as it was in an untenable duality between Equality and Racism, will never fully embrace its greatest ideals so long as it also fully empowers the uncensored expression of its darkest vices. Germany is proof that a democracy is strengthened, not weakened, when it limits the speech of such dangerous intolerance. The only question remaining is: how many more Heather Heyers must we bury before we finally follow Germany’s example?