There is a saying in the law, “Bad facts make bad law”. In essence, some of the worst
interpretations of the law come from cases in which the facts are so egregious. The Fourth
Amendment Right to be free from unlawful searches and seizures has been whittled away
because judges find and stretch loopholes in that constitutional right, in order to make sure
that that murderer does not go free or that drug kingpin does not see the light of day. The
right to remain silent and to be free from self-incrimination afforded by the Fifth Amendment
of the United States Constitution likewise has been eroded, because judges are loathsome to
throw out a confession of that child torturer and again, the sanctity of that right gets
diminished for all.
In the same vein, but not judicially caused, with the tenor of what is going on in this
country right now, the First Amendment and its protections are being chipped away. Not
because some judge has decided that the First Amendment does not protect some speech, but
rather because we, as a society, are making those determinations for ourselves. We have
written in the past about college campuses which, for century upon century, were the bastion
of free thinking and the marketplace of ideas. Universities stood for the unpopular thought
to be thought and the unpopular idea to be spoken. College campuses, by their very nature,
fostered different ideas, some popular, some unpopular, but if they provoked thought they
were welcome for discussion. Now, political correctness and the rights of mommy and
daddy’s little boys and girls to not be offended prevent hateful speech or unpopular speech
from getting a foothold in the discussion.
Across the country college campuses have banned speeches by those that the majority
believes are reprehensible. When they have allowed speeches and speakers, an uproar of
quasi-violent protests and the threat of personal and property damage have caused college
campuses to revoke the rights of the speakers to speak. Safety and harmony have replaced
dialogue, discussion and difference. The First Amendment yields to the hecklers veto.
Now, with the rise of hate, Nazi, fascist and Klan speech, organizations that have
historically championed the rights of all to speak are now taking pause and trying to cut out
exceptions to their unwavering support of First Amendment freedoms and the right to speak.
An organization that we belong to, which is founded on First Amendment rights, has had
members discuss whether or not the organization as a whole and its members individually
should be supporting the Neo-Nazi marchers and their Klansmen brethren rights under the
First Amendment. Regardless of whether we abhor their speech, is their right to speak more
important than our right to hate what they say?
The ACLU, which has unwaveringly supported the right of these hateful organizations
to speak throughout the years, is now taking another look at their position. There is talk that
they will decide on a case-by-case basis, but one of the factors might be the propensity of
violence of the organization that wishes to speak. There is obvious logic to that, but once a
caveat is put on whose speech should be protected, the slippery slope has started and the
protection of the First Amendment will get swallowed up by all the different caveats and all
the different exceptions.
So we are in trying times as far as the First Amendment. Bad facts make bad law. In
this case, bad actors and bad times make bad precedent. If we do not support the right of
marchers to march in support of their Nazi beliefs and bigoted agenda, and we use the excuse
that these are violent organizations, when will this logic be turned against us or groups that
we support. If safety is the sole issue in determining who can march, who can speak, and
who can get their message across, would that not have stopped the civil rights marchers in
the 60’s in the south? Wasn’t there that propensity of danger and loss of property and
personal life even?
The First Amendment is a cruel mistress. She is beautiful in her simplicity and yet
confounding in her complexity at the same time. Straightforwardly, every one should be able
to say what they feel like saying at any time. Yet this brashness hurts feelings and offends
and stirs up emotions. We love her for that ability to stir up emotions and then we hate her
because she has stirred up too many of them. Everyone wants to believe that she belongs to
us, but we are jealous when someone else dances with her in a manner that we do not see fit.
Everyone individually knows exactly what she looks like, but all of us describe her in
different terms so that none of us can paint the exact same picture. Only in absolutism is
there true clarity.
So even though we detest the alt-right and the miscreants that now use that term to
shield their bigotry, hatred, and loathsome ideas, we must allow and support these bottom-
feeders’ rights to express their hatred. If we allow these Neanderthals to speak, to protest and
to march, as long as it remains non-violent, then we ensure that we may march, may speak
and may protest against them, with full First Amendment protections. If our ideas are so
strong and so right, they will shout out the ideas of those who preach hate, distrust and
bigotry. Not because our volume will be louder than theirs, but because our ideas will speak
And yes, our volume will be louder than theirs. It was just decades ago when Captain
Kirk kissed a black Lieutenant Uhura on Star Trek. Shock waves reverberated. Now our
children do not give a second glace to interracial dating and couples. Times have changed
and in no small part because of the First Amendment. Prejudice, bigotry and hatred fester
when not exposed to light. They die when exposed to sunshine. Let them march, let them
chant, but do not let them take away our most fundamental freedom, the right to speak.