After Donald Trump was elected president last year, one of the things I started doing was reading more. A bit of political theory. A lot of history. It was a way to help me understand what had happened and why.
One of the eras I focused on was Reconstruction - that era after the end of the Civil War that, in my experience, gets glossed over in a lot of general American history. Reading Eric Foner's excellent book on Reconstruction and listening to Dr. David Blight's excellent course on The Civil War and Reconstruction helped teach me just how embedded the battles we're fighting on Twitter are into our national DNA. It's the same fight, just different words.
So when the images came across my screen on Friday night of white nationalists in Charlottesville with those stupid Tiki Torches, I was not surprised. I was shocked that it was actually happening. I was angry. I was inspired to make jokes comparing them to the mob following Gaston at the end of Beauty and the Beast. But I was not surprised.
When the news came across our phones on Saturday of the violence in Charlottesville, of one person murdered by a Nazi protester, I was sad. I was angry. But I was not surprised.
No one who reads should have been surprised.
Let's talk about the First Amendment.
Since I teach a media law class, I've been thinking about this aspect of the story a lot. Being a teacher has that impact on you — you have to think about how you're going to explain something to your students, which means you have to understand it yourself.
So how would I answer the question of "Why should the Nazis be allowed to march?"
Legally speaking, it's easy. The Supreme Court ruled on this in Brandenberg v. Ohio, a 1969 case in which a KKK leader was arrested for promoting "revengance" on government leaders at a public rally. The Court ruled in favor of Brandenberg, the KKK leader. Even though the Court acknowledged that his speech was racist, anti-Semitic and all-around offensive, he had a right to express it. "Mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment." The Court ruled that speech loses its First Amendment protection only if it is:
- Directed toward inciting immediate violence or illegal action, and
- Is likely to produce that action.
In other words, only when speech is likely to produce imminent lawless action can it be punished by the government. Short of that, the speech has First Amendment protection. That means Nazis and the KKK have the right to assemble and speak. That means displaying the Nazi and Confederate flags is legal - even though those flags promote genocide and slavery - because they are not likely to lead to imminent lawless action.
Let's be clear - that's what the law says.
There's a difference between the law and ethics. It's the difference between can and should. It's the difference between "my kid is starving' and "I'm stealing a loaf of bread."
Legally, they can assemble. Legally, they can speak. Legally, they can fly their flags.
But should they? Words and pictures have consequences. The words we hear and read and the pictures we see impact us. They impact people who may believe in that garbage, and they impact people of color who are hurt by them. As my friend Jasmine McNeely pointed out, there are decades of media effects research that back this up.
My instinct is to allow a lot of speech. Almost all of it. I'm a believer in the open marketplace of ideas, where you let almost everything in because, in the end, truth will win. I'm a believer in fighting speech with speech. I don't believe in punishing people for what they think or what they believe or for ideas, because as someone who makes his living partially by thinking and expressing ideas, I think that's a slippery slope I don't want to go down.
I also know that this view is colored by the fact that I have every privilege possible in our society. It's the view of a white man who's never been discriminated against, who has every societal advantage, whose fear when a police car is behind him is that he'll get a speeding ticket and not that he'll get shot, who doesn't have to see the flag of the people who enslaved my great-great-great grandfather or who took my grandmother away to Birkenau flown in my face under the banner of Free Speech.
I know what the law says. I agree with what the law says.
But I realized I was having trouble figuring out how I’d explain it to my students in a way that went beyond “That’s what the law says.” I also know that if I'm not willing to at least rethink my beliefs in the face of what we saw this weekend — not necessarily change them, but at least rethink them — I can't help us get better.
On my drive to work, I pass at least three Confederate flags.
This is in Central New York, which was, you know, in the Union. (This pretty much eliminates the whole "heritage not hate" argument, since again, you know, Union.)
Seeing these flags makes me angry. It makes me frustrated. It makes me sad.
We're supposed to be better than this. We're supposed to be the American Experiment, where All Men And Women Are Created Equal. We're supposed to be a nation of progress that moves forward, that is always getting better.
”Gatsby believed in the green light, the orgastric future that year by year recedes before us. It eluded us then, but that's no matter - tomorrow, we will run faster, stretch out our arms farther ... And then one fine morning - so we beat on, boats against the current, borne back ceaselessly into the past."
I want to believe we’re better than this. I want to believe we can move forward. I want to believe this can be a moment of reckoning, where we can start having honest conversations about our Original Sins, where we stop falling for the charlatans and hustlers who have spent the past 40 years blowing dog whistles and stoking people’s resentments and fears for a few more votes, a few more Congressional seats, a few more ratings points and page views, a few more dollars.
Like Gatsby, I want to believe in tomorrow.
Seeing what has happened this week, I am not shocked. Our boats are against the current, borne back ceaselessly into the past we’ve never adequately owned.