Free Speech and the Limits of Government

Here are excerpts from a think piece that appeared in MinnPost by David Schulz.  The entire article can be found here.  It is a very thoughtful piece, and I highly recommend checking out the entire argument of Professor Schulz.

David Schultz is a Hamline University professor of political science. His latest book is “Presidential Swing States: Why Only Ten Matter.”  He blogs at Schultz's Take, where a version of this piece first appeared.   

Charlottesville was ugly in so many ways. But the central question now is: Need we tolerate the intolerant? There is the legal answer, and the social answer. Legally, deciding the limits of free speech has been perhaps one of the most profound and vexing questions in American law. Do we have a right to advocate hate? The overthrowing of the government? Should we be allowed to burn crosses, flags, or draft cards? Is sexually charged language or images discrimination or harassment? Can we, as Supreme Court Justice Oliver Wendell Holmes Jr., once mused, falsely cry fire in a crowded theater, and is it permissible for political candidates to lie? How far can our words go before they cross a line? When has the line been crossed from “names will never hurt me” to where they act as “sticks and stones?”

The line is defined

The Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), a case involving hooded and armed KKK members standing around a burning cross advocating potentially violent action, defined the line. Citing a litany of precedents, it held that:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

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We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak. These latter groups have a right to believe what they want, and the rest of us should do our best to educate and convince them of the error of their ways and urge them to change their mind. However, simply suppressing their speech does not eliminate hate, fear, and prejudice, and the tools we use today to censor our enemies can another day be used against us.