malvasia bianca

In Germany, it’s illegal to display Nazi symbols and symbols of similar nationalist parties, and it’s illegal to be a member of such organizations. Which, as an American growing up under the influence of current U.S. free speech law and under the ACLU’s defense of Nazis in the Skokie case, mostly seemed wrong to me.

This year, though, even before Charlottesville but especially after that, I’d been less sure that Germany’s approach was wrong. I like general rules like free speech absolutism; but we’re talking about banning Nazis here, do I seriously think that that banning Nazis leads to worse outcomes than letting them march around?

Thinking about it a little more, I can come up with two basic arguments in favor of free speech absolutism. One is a belief in the power of the marketplace of ideas, combined with the existence of examples of ideas that I now support that were once considered morally and politically abhorrent by many. I very much think the Catholic Church was wrong to sentence Galileo for heresy; I’m not confident that I don’t have similar blinders myself, and I’m certainly not confident that our lawmakers don’t have similar blinders. And I do have some faith in the ability of humanity to move in a more moral direction; if you combine those two, then an absolutist approach to free speech looks pretty attractive.

The other argument is based on a combination of slippery slopes and power dynamics. If you ban X, then it’s tempting to ban things that are similar in some ways to X; and then my concern is what actually gets banned in practice starts to get strongly shaped by power dynamics. The concern here is that what starts as, say, a law against hate crimes against LGBT people turns into a law against negative speech based on sexual orientation turns into straight people using the law against gay people who say things that straight people don’t like. I can say that that’s ridiculous, that considerations about oppression have to take into effect structural power dynamics; but those of us with structural power have a strong vested interest in not having such considerations at the fore.

Both arguments come with responsibilities. Yes, in general I think that good ideas drive out bad, but it’s not a passive process: people have to fight for the good ideas, fight against the bad ideas. So, if Germany were instead to have adopted a pure free speech approach, a moral imperative would come along with that: keep the horrors of the Nazi regime in the front of people’s minds, to make it harder for people to pretend that it’s a less objectionable form of nationalism. (And, as it turns out: Germany has done this as well, they’re covering their bases.)

Whereas, for the slippery slope argument, the onus is on the other side: can you draw a bright line to set off the ideas that are so bad that they’re considered beyond the pale, to prevent more and more ideas from getting banned? Here’s my best candidate for a bright line: an idea that led your country into a war that it lost, and that in retrospect you feel was horrific from a moral point of view, is worthy of consideration to be banned. Because there aren’t going to be many ideas like that, and any idea that satisfies that criterion has been seductive enough to be actively extremely dangerous, and hence a candidate for extra measures against it.

So: even though I’m still pretty sympathetic to free speech absolutism, I can’t convince myself that Germany has made a bad choice here: what’s the concrete harm that comes from their banning Nazi symbols? But, of course, I’m not German, I’m American. Should we make the same choice?

If we were to ban symbols, the argument above would mean that those symbols should represent something horrific in our past that led to a war that we lost. (To be clear, I’m not making an argument in this post that the US should ban Nazi symbols: I think that’s worth considering, too, but that’s a war that we won, and I’m rather more nervous about winners treating their victories as inherently moral than I am worried about losers using their losses as an opportunity for moral reflection.)

And there’s one obvious candidate, though of course it’s not a perfect fit for the above criterion, because, depending on who you think of as “we”, it’s a war that we both won and lost. (I grew up in the North, not the South.) Namely, the Confederacy, and symbols of similar white supremacist groups, e.g. the KKK. Slavery is the United States’ great moral stain, and its aftereffects are not just still being felt but are actively being propped up a century and a half later.

On the one side have the First Amendment; I can imagine a version of the Fourteenth Amendment that would have taken a stronger stand against membership in white supremacist groups, but we didn’t make that choice. That means that this is a hypothetical argument, since our Constitution is on the side of free speech absolutism; and, as said above, that in turn imposes responsibilities.

Which, as a nation, we have failed abysmally in. The fact that I didn’t have to learn much about Reconstruction in school is, itself, a sign of that failing; my impression, though, is that Reconstruction had a lot going for it, but we gave up just over a decade into the process, and the South fell back very quickly into an extreme white supremacist society. Jim Crow continued until a full century after the Civil War ended; and, even now, we have a New Jim Crow with a shocking proportion of the African American population of the country under direct police control.

And, at the same time, explicitly pro-Confederate symbols and historiography are lamentably common. With that comes a recasting of the Civil War as being about “states’ rights”, without placing front and center the fact that the primary right that the Southern states were fighting for was the right to have slaves, a “right” which which is in fact horrifically wrong.

Also, Trump voters are apparently significantly more likely to think that white Americans are more discriminated against than black americans. Which is the slippery slope / power dynamic problem that I was worried about above; its presence here, though, suggests that I shouldn’t think about it primarily in the context of speech bans, because it’s happening anyways? Though I’m sure it would happen in the context of speech bans, too: so I guess it’s another argument for keeping the horrors of white supremacy present enough that we can’t sweep them under the rug.

We’ve fucked up as a nation, and are continuing to actively do so. And, at this point, I have no patience for arguments about freedom of speech and listening to all sides that treat this as an abstract question, divorced from our history and the ongoing affects of that history.