A great deal of the debate around contemporary free speech centers upon “safe spaces,” often derided by critics as dissent-free zones where people can comfortably presume the righteousness of their own worldviews. But Frederick Schauer’s essay points to the centrality of safety, in the more physical sense of the term, in our conceptions of free speech. It is worth considering the point that the parameters of free speech are set not just by the limits of public tolerance but also by the practical budgetary concerns of ensuring a safe forum in which ideas—even repugnant, morally disreputable ones—can be expressed.

There are inherent dangers to allowing the limits of free speech to be determined by the tolerance of angry listeners, not the least of which is the fact that throughout history demagogues and visionaries have often encountered similarly hostile reactions to their ideas. The long view of history has sorted the differing social value between the rhetoric of Martin Luther King Jr. and that of George Lincoln Rockwell. But at the time, an uninformed viewer might simply have seen them as two men whose views aroused a great deal of outrage among those who disagreed. Viewed another way, this is a question of democracy and minority rights. What, as Salman Rushdie asked when the fatwa was issued against him, can be smaller than a minority of one?

On the other side of the equation, the fact that such criminal offenses as “incitement to riot” exist points to contradictions within the idea that the “marketplace of ideas” will ultimately give speech its appropriate valuation absent outside interference. Why, in a perfect world full of rational actors, would we need laws to impede the likelihood that a single speaker can inspire an audience of presumably rational individuals toward ends that are calamitous, disruptive, violent, and damaging to the broader municipal interests? What dark power does a single individual possess that might push people past their rational inclinations and into bedlam?

These are interesting questions but in reality not entirely germane to what happened in Charlottesville. There was good reason to believe that the Unite the Right rallygoers were not there simply to exercise their rights of free speech—Nazi ideology is not big on personal liberty in the first place—but rather to intimidate and threaten. It wasn’t a coincidence that the demonstrators arrived like an army amassing on the border of a warring nation, equipped with shields, batons, and firearms. Nor should it be at all surprising that they eventually found their way over to the church where the interracial group of counter-demonstrators was praying and surrounded it while carrying torches. Even a passing familiarity with the history of arson and racial terrorism in the American South would register the broader connotations of that act. The central question is less whether the audience was hostile than whether the audience was to be the target of hostility all along. There was a single fatality in Charlottesville: a counter-demonstrator named Heather Heyer who was run down by a vehicle driven by a man with white nationalist sympathies as he plowed into a crowd of pedestrians. Thus the reasonable question is whether the city of Charlottesville possessed the resources to protect the public from the demonstrators.

By couching their movement as a matter of constitutional principle, the Unite the Right rallygoers recalled the Cold War truism that hostile forces who wish to subvert democracy will often use the very institutions of democracy to achieve that goal. Nor should it be particularly surprising that race is an arena in which democratic ideals can be utilized to such anti-democratic ends. The Fifth Amendment protections of due process were once notably deployed to argue that emancipation of enslaved black people was unconstitutional. In 1915, requests that the film “Birth of a Nation” be banned in the city of Boston were rejected on First Amendment grounds. The film was central to the rebirth of the Ku Klux Klan and to reinvigorating the fervor to lynch Southern blacks and intimidate them from participating in the political process.

The distinguishing element between a mob and a movement is the purpose for which their members have gathered. A movement seeks the realization of some idea, even an odious one. A mob is a gathering devoted to the gratification of primal instinct. One wishes to express a sentiment, while the other communicates in the language of fist, stick, knife, and gun. We have cause to be concerned about the rights of the former; the latter is simply a cause for concern. Charlottesville pointed to the reality that there are often deadly costs when people of good sense and presumably noble intentions fail in noticing the difference.

1. The question Schauer raises about the lack of legal distinction between incitement of a sympathetic crowd and provocation of a hostile one is similarly noteworthy. The 1942 Supreme Court decision in Chaplinsky v. New Hampshire, which established the doctrine of “fighting words”—terms so inflammatory that a rational actor might reasonably be driven to violence—would seem applicable here. The premise of the doctrine is directed specifically at a hostile audience, not an easily incited sympathetic one. The Christian residents of Rochester, New Hampshire, in that case, could be expected to react violently toward Walter Chaplinsky, a Jehovah’s Witness, as he denounced their religious beliefs and referred to a local police officer as “a damned Fascist.”

© 2017, Jelani Cobb.

 

Cite as: Jelani Cobb, Unsafe Spaces, 17-02.a Knight First Amend. Inst. (Nov. 2, 2017), https://knightcolumbia.org/content/unsafe-spaces [https://perma.cc/M6L8-LM8C].