When free-speech advocates point out that the First Amendment protects even hate speech, as the attorney Ken White recently observed, they are often met with extreme hypotheticals. For example: “So, the day that Nazis march in the streets, armed, carrying the swastika flag, Sieg-Heiling, calling out abuse of Jews and blacks, some of their number assaulting and even killing people, you’ll still defend their right to speak?”
In Charlottesville, he declared, something like that scenario came to pass: “Literal Nazis marched the streets of an American city, calling out Jews and blacks and gays, wielding everything from torches to clubs and shields to rifles, offering Nazi slogans and Nazi salutes. Some of their number attacked counter-protesters, and one of them murdered a counter-protester and attempted to murder many others. This is the ‘what if’ and ‘how far’ that critics of vigorous free speech policies pose to us as a society.”
Nevertheless, he wrote, his civil-libertarian views were unchanged, his belief in constitutional protections for hate speech unaffected, because the countervailing hypothetical that free-speech advocates have always raised in reply to dark scenarios about hate speech––that it is shortsighted to give the state “the power to choose what speech is acceptable and what speech isn’t, and use its vast power to punish the difference,” because that state may one day be controlled by a leader “who overtly relishes the power to punish people who think like you do, encouraged by supporters who hate you”––applies every bit as much to the present moment.