Counter Punch - September 2017

The growing fascist movement in the United States often claims that it is marching for “free speech” and complains that Antifa and other opponents are violating their rights. Unfortunately, this cynical claim has won some credibility among liberals and even the ACLU. But the law does not protect the advocacy of violence any more than it protects child pornography. These well-established legal principles should be extended to prohibit the advocacy of genocide, the ultimate violence.

Arguing about the free speech rights of Nazis, fascists, and KKK members is a trap. The issue is not speech, it is violence. The fascists do not want to argue with us, they want to kill us.

A brief review of U.S. law demonstrates that fascist advocacy of violence and genocide can and should be prohibited. In 1969 the U.S. Supreme Court ruled in Brandenburg v. Ohio that there is no free speech right to advocate violence when there is a likelihood that violence will actually occur. The Court traced the development of U.S. law from its earlier prohibition of even abstract teaching of the necessity of violence for accomplishing social change to protecting such speech “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The development of the law discussed in Brandenburg occurred primarily in cases overturning the criminal convictions of people found guilty of supporting the Marxist teaching of the necessity for the violent overthrow of governments dominated by the capitalist ruling class. The Brandenburg Court confirmed that while “mere advocacy” cannot be forbidden, “incitement to imminent lawless action” is not protected. In earlier cases, Supreme Court judges, including the great Oliver Wendell Holmes, argued that speech must be protected unless likely to cause a “present conflagration.”

The Supreme Court has ruled that several types of speech are not protected, including child pornography (New York v. Ferber, 1982); fighting words (Chaplinsky v. New Hampshire, 1942); and threats of violence (Watts v. United States, 1969). In 2010, the Court ruled in Holder v. Humanitarian Law Project that Congress could prohibit advocacy “in coordination with or at the direction of” a terrorist organization. The Nazis and other fascist groups should be viewed as terrorist organizations. ...
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