America's Best Test of Truth

The birth of the ACLU and the limits of free speech

An older Jewish woman asked me today what I think about the pro-Hamas, pro-Hezbollah protesters who are marching outside the White House, chanting “jihad!” and waving signs calling for an intifada. “Isn’t that hate speech?” she asked. “Don’t we know what comes next? And shouldn’t we try to stop it?”

Yes, I replied, protesters are encouraging violence towards “Zionists,” but hate speech is not regulated in the U.S. as the Constitution protects freedom of expression. In fact, in the 1992 case R.A.V. v. City of St. Paul, the Supreme Court ruled that a group of white teens could not be charged under an anti-bias ordinance for burning a cross in a black family’s yard because cities can prohibit trespassing, but not opinions.

“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible,” the Court concluded. “But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

And yes, I added, we know what comes next. The genocide expert Gregory Stanton has outlined the ten stages of genocide and we have already passed the first six—classifying all Jews as Zionists, using symbols such as the Star of David, denying rights by barring Jewish students from campus, dehumanization by depicting hostages as pigs, organization with campus protests arranged by antisemitic academics, and polarization.

The final four stages are preparation, persecution, extermination, and denial. In other words, we are at the last stage before the killing begins. This is not to say that I think we are on the verge of genocide in America, but we are staring into the abyss and if there is any time for reflection, it is now. With this, the room fell deathly silent until one young Jewish man turned to me and asked, “Where do you draw the line?”

Right where the law does, I told him. We think of it as a bedrock American principle, but freedom of speech as we know it is a relatively modern invention. The current edition is only 51 years old. We forget this freedom is neither as ancient nor as durable as we imagine, or that it was so hard won. The battle did not end with the ratification of the First Amendment in 1791, but continued well into the 20th century.

Indeed in 1912, the communist activist Emma Goldman and her anarchist lover Ben Reitman visited San Francisco to speak for the Industrial Workers of the World (IWW), but before they even left the station a mob threatened to strip Goldman naked and “tear out her guts.” They made it to their hotel but while Goldman was speaking to the police, Reitman was taken from his room. His kidnappers drove him 20 miles outside town, beat him, stripped him naked, branded “IWW” on his buttocks with a cigar, poured a can of tar over his head, pushed a cane into his rectum, urinated on him, twisted his testicles, and forced him to kiss the American flag.

Towns and cities nationwide had been passing laws banning public speaking and the IWW, as well as various socialist groups, had been carrying out free-speech demonstrations in protest. But as IWW historian Joyce Kornbluh writes, like the protesters on our campuses and in our capital today, “Their soapbox speeches sounded seditious, unpatriotic, immoral, and threatening.”

As a result, treatment like the kind Goldman and Reitman received was not uncommon, and after the Bolsheviks stormed the Winter Palace in the Russian Revolution of 1917, the First Red Scare kicked off in the United States and restrictions on free speech intensified. Goldman was sentenced to two years in jail for publicly encouraging people not to register for the draft during World War I, and shortly after her release she was arrested again, along with 248 others, in the Palmer Raids of 1919.

During the raids, Attorney General Richard Palmer led the arrest of 6,000 suspected anarchists and communists in 36 cities, targeting Italian and Ashkenazi immigrants and deporting 556 foreigners. We remember America’s two red scares as periods of hysterical scapegoating, but they were also responses to real danger. The Russian and German Revolutions had just taken place and communists were already subverting America, race riots had broken out in over 30 cities, anarchists sent 36 mail bombs to journalists and officials, and strikes were conducted by Boston police, thousands of New York tenants, almost 400,000 coal workers, and half the steel industry.

The communists were at the gates and free speech was their most powerful weapon, yet even while staring down the barrel of a gun, America did not bend. In fact, we strengthened freedom of speech in the very moment that people were using it to subvert the nation. Until 1919, free speech was limited, especially speech that could result in violence, so when Socialist Party executive committee member Charles Schenck was charged for handing out 15,000 flyers urging men to dodge the draft, the Supreme Court upheld the ruling in Schenck v. United States, in which Justice Oliver Wendell Holmes Jr. argued, famously using the example of shouting fire in a crowded theater, that speech is only protected if it does not pose “a clear and present danger.”

It was in this battlefield that the lawyers Crystal Eastman and Roger Baldwin founded the American Civil Liberties Union (ACLU) in 1920. Baldwin had seen Goldman speak years before and was inspired to pursue a career defending the First Amendment. But the clear and present danger principle would not be refined until the 1969 case Brandenburg v. Ohio, which replaced it with the imminent lawless action standard, meaning speech has to represent an imminent and likely threat to peace. The 1973 case Hess v. Indiana clarified “imminent” to mean a definite future time.

So when I saw thousands of protesters had surrounded 1600 Pennsylvania Avenue this week, some wearing green Hamas headbands, some burning the American and Israeli flags, and some crying for jihad and intifada, I thought to myself, Go ahead and say it. As Woodrow Wilson explained in an address at the Institute of France in 1919, “If a man is a fool, the best thing to do is to encourage him to advertise the fact by speaking. It cannot be so easily discovered if you allow him to remain silent and look wise, but if you let him speak, the secret is out and the world knows that he is a fool.”

This is the philosophy of the marketplace of ideas, the same thinking that was behind the Court’s decision in R.A.V. v. City of St. Paul. You can make it illegal to burn things on someone’s front lawn, but you cannot target the content of their speech except in the free arena of public discourse.

“But they were calling for murder,” the older Jewish woman said to me. “Did you see the video where they were calling for murder?”

Yes, I said, I had seen the video that made headlines in which protesters chanted, “Hezbollah! Hezbollah! Kill another Zionist now!” But I pointed out that there were only seven teenage-looking protesters taking part in the video. I also saw a video of an older man claiming to support Hezbollah who had no clue what he was talking about, and reading that many protesters had suddenly bused in, I wondered how many were the useful idiots of an astroturf campaign being paid to parrot talking points.

“David is right,” said the young Jewish man. “Free speech is enshrined in the Constitution and it makes no sense to think about how things might be. The First Amendment is the first for a reason. Not the 44th. The first. It is the basis of all other freedoms granted by that document and it’s not going anywhere, at least not in my lifetime. If you prefer more safety and less freedom, find another country.”

What a stirring defense of free speech, I thought. But then he added, “If that describes you, there are many countries to choose from. Find one where antisemitic rhetoric is illegal. That’s why Israel is in my future.”

I understood his decision, just as I understood the older woman’s fear at seeing such things transpire in America of all places. It reminded me of a Russian grandmother, whose son had told me the story after I wrote about the Vladimir Lenin statue in Seattle. She had come to visit him in America and broke down weeping upon seeing the 16-foot tall likeness of the man who massacred her family, and took pleasure in doing it. Now, a Jewish woman was watching students on campuses target Jewish professors and jihadists march in the capital, and she was feeling a similar fear.

I explained that I am not a free speech absolutist, that I doubt anyone really is, and that I support the imminent lawless action standard as the bright red line limiting what people should be allowed to say. Beyond that, I said, I had recently heard

Greg Lukianoff

describe himself on

Sam Harris

’s podcast as an opinion absolutist, and I think this captures the spirit of the law and is a fundamental prerequisite for the health of any multicultural society where various opposing views will be voiced.

She seemed unconvinced, so I added that I find it interesting to note that D.W. Griffith’s film Birth of a Nation, in which the KKK are represented as the heroes of the story, was a technical masterpiece. Similarly, Leni Riefenstahl’s Nazi propaganda film Triumph of the Will is considered the greatest propaganda film ever made. More recently, neo-Nazis were among the first to make use of internet chat rooms. The point being that Nazis, white supremacists, and communists have always understood the power of communication technology and made innovative use of it because they have always relied on propaganda, not having had the truth on their side.

But the best response to lies is always truth, I said, and told her the story of how the U.S. Department of War decided to create its own propaganda response to Triumph of the Will. They hired the great director Frank Capra to produce the seven-film series titled Why We Fight, but Capra shocked his supervisors by including in his film enemy speeches, films, newsreels, newspaper articles, and a list of the enemy’s crimes.

Why would you amplify their lies? his supervisors demanded to know. We should be censoring this nonsense, not helping them spread it. But for Capra, the greatest rebuttal of Nazi ideology was Nazi ideology itself.

“Let our boys hear the Nazis and the Japs shout their own claims of master-race crud,” he said, “and our fighting men will know why they are in uniform.” The film was a success and proved him right. Nazi ideology was inherently repulsive to most Americans. You only had to present both sides for the public to see, as Vice President Henry Wallace put it, that this was “a fight between a free world and a slave world.”

So let them say what they will say. Let them wave their hands soaked in fake blood and raise their red banners and wear their green headbands. Let them march in the name of death and call it “resistance.” Let them reveal themselves with silence when hostages are taken, or with outrage when hostages are rescued. Let them confess. Because truth is the best weapon against lies and, as Oliver Wendell Holmes Jr. said, winning in the marketplace of ideas is “the best test of truth.”