Fascism and Bad Faith

We Need A New Concept Of Free Speech, And We Need It Now

Rejecting the civil libertarian interpretation of the First Amendment is more important than ever

For as long as I can remember, from middle school to high school and into college, the central purpose of free speech in the United States has been allowing the Ku Klux Klan to march in the streets.

In middle school: No speech can be abridged, even the KKK threatening ethnic minorities with a public display of aggression. In high school: You may not like it, but a Klan rally is the purest form of free speech, peak freedom. In college: The founders would have loved nothing more than to see KKK members exercise their First Amendment rights.

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To be a student in the US is to be told that the constitutional right to free speech was made specifically for the shittiest forms of self expression, that these odious displays are acceptable – even good – because it shows that all speech is in fact free. It’s the sort of lesson that makes one wonder if the First Amendment is really worth it, if the whole thing is a legalistic cudgel to be used by the country’s most repressive, anti-social forces.

It never felt right to hold up the Klan’s right to spread hate and fear as a shining example of what unabridged speech can look like in a liberal democracy. Rarely if ever did my social studies and history classes review pro-democracy speech that needed protection against authoritarian state governments and those dedicating their lives to defeating racial and gender and sexual hierarchies. Speech that pushed back against tyrannical elected officials frothing at the prospect of maintaining old power structures was never the focus of these First Amendment lessons.

It always came back to the KKK: They were the ones whose rights of self expression needed to be protected if yours was to be protected too. In this way – a deeply perverse way that I hated even as a child – the Klan marching through American streets with police protection, implicitly threatening those they hate, was a beautiful example of freedom. I was told I must learn to love this image. It was what Americans had fought and died to secure. The Shining City on the Hill could not shine without a legally protected rally of violent, masked racists.

This idea – that free speech must be protected first and foremost for human vectors of hate and fear – is decimated entirely in Fearless Speech, a book written by Dr. Mary Ann Franks, whose incisive Senate testimony I highlighted in a recent Bad Faith Times podcast. Franks rejects completely the legal conflation of “offense” and “injury” for the purposes of the First Amendment, calling it (correctly) ahistorical and depoliticized.

If the First Amendment is properly interpreted as a crucial democratic right to speak truth to power, then a violent white supremacist group’s “show of force against a vulnerable community” does not qualify, Franks writes. The Klan example of free speech, she says, is in fact “the very antithesis” of speaking truth to power. There is no truth being spoken, and there is no power being challenged. There is only in-the-flesh trolling and a vague but very real threatening of marginalized people. This, Franks argues quite convincingly, cannot be the legacy of the First Amendment.

Sucking the politics and history out of matters of free speech in the United States is a fun little trick that can only be pulled off through the lens of civil libertarianism, a concept that intentionally flattens society and ignores all current and historical context. This in turn protects and very much normalizes powerful people and groups deploying the First Amendment as a weapon against marginalized and vulnerable populations – a trick that makes Civil Rights protesters in the 1960s the same as racist mobs intending to maim or kill those protesters and everyone who looks like them. Civil libertarianism, whether intentionally or not, opens every avenue for right-wing dominance of culture, law, and politics.

Think of civil libertarianism as a fancy way to convince people that good and bad things are exactly the same. It’s how the Trump regime’s education officials can cite Martin Luther King Jr.’s words in their push to resegregate American society. MLK, they say with bad faith leaking out of their ears, said all people were created equal. That includes the poor white children suffering discrimination thanks to diversity programs in public schools. Libertarianism is the ideology that brought you the juvenile and utterly unworkable concept of the flat tax, a system of taxation that does not acknowledge the economic advantages some enjoy and ignores the history of progressive taxation that has given us something we like to call a society. Everyone is treated equally in bad faith under libertarianism; it is an ideology that exists in a political, cultural, and economic vacuum, free from the inconvenience and messiness of reality.

In the civil libertarianism lens, Franks writes, “profanity, swastikas, sit-ins, burning crosses, pacifism, and Confederate flags are all swept up together. Indeed, in the civil libertarian view, the more repulsive and the expression, the more protection it deserves. This claim relies not just on ‘bad precedent’ theory (censoring nazis today means censoring Jews tomorrow) but also on the specious ‘speech we hate’ defense.”

“Interpreting the First Amendment as a right of reckless speech has paved the way for the violent reaffirmation of racial patriarchy,” Franks wrote in a passage so clear and concise and damning that I would have stood up and cheered if it had not been 10:30 p.m. with my kids sound asleep.

Bad Precedent Bullshit

Reading Fearless Speech, I realized the Klan-centric First Amendment curriculum of my youth was firmly in the tradition of what Franks calls the “bad precedent” theory of speech rights in the United States. All voices, all messages, all groups must be able to speak at any time, anywhere, to anyone if the First Amendment is to remain a robust protection for all Americans, the thinking goes. No matter how hideous or violent, all forms of speech are equal.

An American speaking out against a politician advocating for systemic repression of marginalized communities is the same as an American loudly and proudly taking to the streets and telling people they agree with discriminatory, murderous ideologies, and very much want to bring those ideologies into power. If you disallow the latter, you cannot have the former: That’s what bad precedent theory tells us.

This is, as Franks says, bullshit.

The civil libertarian “bad precedent” theory of censorship similarly relies on a depoliticized, ahistorical account of reality that erases acts of oppression by powerful groups in the past and assigns a false power to vulnerable groups in the present. Whether expressed to discourage subordinated groups from attempting to limit the power of oppressive groups or to reassure the same groups that such restraint will keep them safe, this theory at best creates a false equivalence between asymmetrical parties and at worst inverts the relationship of perpetrators and victims entirely. As such, it perfectly converges with the neo-Confederate agenda to co-opt free speech for violent, antidemocratic purposes.

The ACLU has for decades been the leading purveyor of “bad precedent” theory and civil libertarianism as the basis for all free speech law in America, priding itself on the bipartisan nature of its free speech defense. The ACLU has been particularly proud of defending white supremacists and neo-nazis as they explicitly try to unravel multiracial democracy and bring about the resegregation of American society – a goal that the neo-Confederate Trump regime is advancing every day in our post-constitutional moment.

This pride in ensuring the worst among us can spill their poison into the body politick is seen even when the ACLU does not take up a free speech cause. When the organization chose not to step in and defend Amber Heard in her legal battle with Johnny Depp – a case that had a major chilling effect on survivors of domestic violence – the ACLU released a statement that did not acknowledge the stakes of the Heard-Depp case but “offered reassurances that the organization was just as devoted to nazis as it always had been,” Franks wrote.

The bad precedent theory has for too long been treated as self-evident, as the only way to interpret speech rights in a democratic republic. You see the results of this interpretation every day: The First Amendment has been weaponized by the rich and the powerful to advance their pet causes and silence anyone who would stand in their way. Free speech, in a nakedly bad faith way, has become the territory of the far right because they understand how effective a civil libertarian approach can be to defanging their opposition and using legal precedent to push dangerous, anti-democracy ideas into mainstream political discourse. They ask with a knowing grin: Why can’t we talk about race science? Why can’t we ask if black folks were better off enslaved? Why can’t we talk about ending health care for transgender people?

This is our speech and our speech is as worthy as any other form of speech. The civil libertarian nods wisely and agrees. Good and bad things are the same, you imbecile, you moron. And if anyone dares raise concerns about the effects of their hateful speech, they cry censorship and gain compliance from institutions that could stop them from further eroding the bonds of American society.

Only the rich and powerful insist they are being censored in these bad faith times. It is a “thought terminating” construction.

“The people who most need the ACLU to defend the rights of the Klan are the blacks,” Aryeh Neier, a former ACLU executive director, said. “The people who most need the ACLU to defend the rights of nazis are the Jews.”

It is, at best, a naive way to interpret and apply free speech laws under the First Amendment. At worst, it’s actively harmful and demeaning. In this telling, under the ideas advanced by the ACLU and other civil libertarian groups, a black American is supposed to be grateful that a group of men whose goal is the subjugation of people of color receives broad and consistent support from civil society. Power structures never come into play. History is never considered. We are to be happy in our vacuum, free of anything that may disturb the impenetrable legal bubble of libertarianism.

Franks points to the ACLU’s commitment to defending the rights of white supremacist groups to gather in Charlottesville, Virginia in 2017 to celebrate the 2016 victory of a neo-Confederate president who had winked and nodded throughout his campaign to secure support from far-right groups that had long ago dismissed the Republican Party as insufficiently radical and an impediment to their goals: Genocide and ethnic cleansing, and stripping of equal rights for women and LGBTQ people, and a return to male white supremacist rule.

ACLU officials made every effort to ensure the neo-nazi organizations that rallied in Charlottesville to protest the removal of one Confederate statue, even as local officials expressed grave concern about the gathering.

No, the civil libertarians said, these people need to be able to speak because all speech is the same. The ACLU would not even accept a last-minute change to the venue of the hate rally. Moving the gathering away from the city’s downtown, according to the ACLU, would have “diluted and altered” the message of the men openly supporting naziism and the language of elimination.

The Charlottesville neo-nazi rally, as you know, descended into violent chaos. It was never going to be a peaceful gathering, but rather a show of force by radicalized young white men whose heinous politics had been vindicated with Trump’s victory. A violent ideology created a violent rally that ended with dozens of injuries and the murder of an anti-fascist protester named Heather Heyer. This is what free speech wrought.

We are to believe that the First Amendment cannot exist unless the most antisocial political organizations in the country can do and say what they want at any time and in any place. We are to believe that the powerless must be threatened by the powerful if anyone is ever to speak freely in the United States.

This idea of free speech, I think, has to be outright rejected if Americans are to use the First Amendment effectively in a fight for a fair, free country: To challenge powerful people and institutions with unabridged speech, without fear of legal backlash, and with the protection of civil society and the government itself. We have lost that in this second Trump term, and we may never gain it back if we don’t try to replace the civil libertarian idea of speech with one promoting equality and protection for those who need it the most. It is a revolutionary idea that would stop those atop the hierarchies of oppression from using a basic right to crush dissent and permanently establish their dominance in an era where the constitution no longer applies. That this might be a decades-long project shouldn't stop us from pursuing it. Look no further than the right-wing legal think tanks that waited in the weeds for generations before they could mold the courts and unleash their terrible vision of the country on us all.

Without a drastic change in free speech interpretation, the legacy of free speech in America will be speech-destroying authoritarianism. The end of free speech discourse centered on the Ku Klux Klan would be a good first step.

Follow Denny Carter on BlueSky at @dennycarter.bsky.social.