What liberalism’s fetish for abstraction does, however, is leave it woefully unprepared for rights conflicts, which are inevitable in a complex society. At some point, one person’s exercise of their rights will come into conflict with another person exercising theirs, and this dispute must be adjudicated upon. Someone’s rights will be abridged as a result, which will be necessary to guaranteeing democracy’s stated aims.
What Liberals Don’t Get About Free Speech In The Age Of Trump
Katherine Cross

I read your essay this morning and have found myself thinking of it recurrently throughout the day. This idea about competing rights is crucial, and your point that the conflict must be ‘adjudicated’ got me thinking.

The thing is, in the United States, the precise question of whose rights prevail and whose are suppressed in these situations has been adjudicated… by the Supreme Court. And the answer they gave is that the free speech rights trump the other rights.

The Sullivan vs New York Times case gives extraordinary leeway for the press to publish conjecture and smears about public figures. It is the envy of newspaper editors everywhere in the world. The Skokie case allowed actual Nazis to march through a Jewish town: surely the very definition of intimidation? I only read about the Brandenburg v. Ohio case last month, and was shocked to discover that the Supreme Court ruled that the First Amendment right to free speech extended to a clansman advocating genocide… because the speech in question would not lead to ‘imminent lawless behaviour’!

Much of the defence of Milo Yiannopolous comes from people who are just happy to see him vocalising things that they think but do not say. The hypocrisy of these people (I include the CPAC organisers in this) was exposed earlier this month when they were horrified by his comments about sex with young boys, and abandoned their support for his freedom of expression.

However, I think the defence of this kind of speech from other quarters, such as the Matthew D’Ancona op-ed you mention, comes from a different place: the desire to simply defend the settled primacy of free speech in the American culture and legal system. I work for a free speech campaign group in the U.K. (though I am writing this comment in a personal capacity) and the desire to shore up the existing, extremely permissive free speech protections is certainly why I would defend the right of Milo to speak. To argue otherwise would be to chip away at the protections that protect you, me (were I ever to visit the U.S.A.) and also MLK, Malcolm X, #BlackLivesMatter, Occupy and anyone else seeking to take on powerful people. Skokie and Brandenburg and Sullivan may allow horrible people to say horrible things, but while all that case law is still in place, it is simply impossible for the current President of the United States and his cronies to suppress the widespread and relentless dissent to everything they do.

I might also suggest (and you and other Americans will swiftly correct me if I’m wrong) that the constitutional free speech protections are simply part of the established culture of the country. In this respect, it’s is like the Second Amendment, which also causes rights to clash. In this case, it’s the right to life (as in Life, Liberty and Happiness) colliding with the right to bear arms. There seems to be a cultural consensus that regular violations of the right to life are a price worth paying for the right to bear arms.

Of course, cultures can change, and future Supreme Court decisions could shift the law, to a place where the harm that someone like Milo Yiannopolous can cause is taken into account.

I guess my point is that the issue that Milo has provocatively raised cannot just be solved by an consensus emerging among the decision-makers on a particular campus: it’s a problem that is hardwired into the culture and laws of the country.

It would be remiss of me not to note that (a) the original constitutional protections and (b) the Supreme Court decisions I mentioned were all written by white men. A persuasive argument could be made that the laws have been written and interpreted to preserve the right of people to say racist things and possibly incite violence against people of colour. I don’t really know what it means that the the only black justice in the Brandenburg and Skokie cases, Thurgood Marshall, voted with the majority (i.e. in favour of permitting the racists to be racist) both occasions.