Monday, January 22, 2007

The First Amendment Does Not Require Applause and Candy

Last week, I blogged about a complaint sent to the Justice Department regarding activities by the "Jewish Lobby" that were perceived as anti-Muslim. Professor Volokh noted that nearly all the activities cited in the brief were constitutionally protected speech, and thus the Justice Department would have no jurisdiction to enjoin the "Jewish Lobby" even if it wanted to.

The author of the brief wrote an email to Volokh, effectively protesting that Jews don't show equal regard for the 1st amendment when the subject is Holocaust denial or "wiping Israel off the map." Indeed, she avers, when that speech is uttered, Jews are quick to label the interlocutor "anti-Semite"!

It's a spectacularly stupid argument, and Volokh dispatches of it neatly. First of all, he notes, by and large the Jewish establishment has spoken out against legal censorship of anti-Semitic views, citing to such prominent Jewish figures like Alan Dershowitz and Nadine Strossen, as well as non-Jews like, well, himself. This is free speech, like it or not, and for all the mythical power of the "Jewish Lobby" one thing it has not tried to do is criminalize criticisms (or even outright slurs) against Israel, Jews, or Judaism.

However, we most certainly do call people who deny the Holocaust or praise Hitler "anti-Semites." And why shouldn't we? What, precisely, should my reaction be to such comments aside from round condemnation and social ostracism? As Volokh notes, this is precisely the suggested liberal response to distasteful or hateful speech--legal protection, but social condemnation against the speaker. Indeed, I'm really not sure what my other options are here, besides ignoring the speech on the ground that it doesn't matter (which flies in the face of the entire liberal justification for avoiding censorship, that "bad" speech should be aggressively met on the battlefield with competing ideas), or applaud the speech and express my support, which, begging all my neo-Nazi reader's pardon, will happen when Hell freezes over.

There are arguments to be made about why the 1st amendment shouldn't be read to cover "hate speech." But those arguments are best made by people who at least understand the basic liberal position that one can (and should) criticize certain opinions vociferously while still not supporting their legal prohibition.


The probligo said...

Hmm, ah, yeah.

I would be interested to hear your thoughts on the aborted address that Tony Judt was supposed to have given in New York late or mid last year.

The pressure applied to the Polish Embassy by an unnamed group was never denied (or for that matter confirmed) as being Jewish.

The question has to be asked - who would benefit the most by silencing Judt in New York?

David Schraub said...

I'm going to go with...the Poles, whose sordid history of anti-Semitic oppression makes them an easy target for contemporary claims today.

And regardless of whether our unnamed group was Jewish or not, it is quite irrelevant. If said group thinks Judt's speech was anti-Semitic (or otherwise bad), why shouldn't they speak up and be heard? Should they maintain their silence? Should they applaud? So long as they don't put legal pressure to bear, I have trouble identifying the problem here (as opposed to the ideal of how a liberal society ought to conduct itself).