Free Speech and “The Paradox of Tolerance”

White nationalists/ White supremacists/ Nazis/ Clansmen (can someone please come up with a word that captures all these clowns since they are really the same?) have been reasserting themselves.  By their own admission, they have felt emboldened by the President’s  racist and xenophobic rhetoric and the fact that he will not outright condemn white supremacy.  In Charlottesville the galvanizing issue was the removal of Confederate statues which, by the way, actually have little to do with the real history of the Civil War and antebellum South.  If you want a memorial to the ideas those southern generals fought to uphold then put up statues of Gordon or “whipped Peter.”   That’s a topic for another post perhaps.  What I am interested in is a discussion of the limits of free speech and the toleration of hate speech.  A popular meme on Popper’s “paradox of tolerance” has been making the rounds on social media.  I have also seen petitions being circulated (including at my alma mater UPenn) regarding the curtailment of hate speech on campus.  Popper’s paradox of tolerance is an important argument for why we must be organized in our opposition to the Nazi clowns who feel that they can safely craw out from under their rocks to protest the removal of monuments to white supremacy.  However, attempts to use legislative or policy mechanisms to curtail free speech are misguided: if you really believe in social justice you should resist attempts to restrict free speech. Such laws have typically been used for illiberal purposes by suppressing the voices of labor activists, advocates for economic justice as well as those opposed to slavery, racial and gender discrimination and Americas imperial interests.

The Paradox of Tolerance

Here’s the meme that has been floating around recently.

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The paradox comes from Volume One of Popper’s The Open Society and Its Enemies.”  To give you the full context, here is what he writes:

“Less well known is the paradox of tolerance: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In this formulation, I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise. But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law, and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal” (Popper, 1971, p. 265).

Here is a rare case where an endnote becomes the most talked about part of a book!  The fact that this is an endnote also makes it troublesome because the ideas are not as thoroughly developed as one would expect from a philosopher of Popper’s caliber.  So, what does he mean then?  How far should the intolerance of illiberal ideas go?  Was Popper arguing in favor of legal restriction on free speech?  I doubt it, at least not as a first defense against illiberal ideas (that is, ideas antithetical to a free and open society).  It is especially doubtful given his close association with several leaders of the burgeoning Libertarian movement. The problems with memes and tweets and sound bites is that they do not reveal the depth of an idea.  Case in point is the meme above which misses a critical line in Popper’s work:

“I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise” (Popper, 1971, p. 265).

To understand the implications of the paradox of tolerance we need to be clear on exactly what we mean by tolerance.  If we can clarify that point, I think we can see that legal restriction on free speech–even the most odious and idiotic white supremacists rhetoric—is unnecessary.

On Tolerance

                Tolerance implies a respect for rights, not necessarily a respect for ideas or the people that hold them.  Unfortunately, we have often taken tolerance to mean that all ideas must be weighed or considered or even respected, or that we need to be nice and respectful toward Nazis.  There is no such moral obligation.  In a liberal society, my only obligation is to recognize the right of others to hold ideas contrary to my own, even ideas that I believe are reprehensible.  However, I am not obligated to be understanding toward those ideas or even respectful towards the people who hold them.  In fact, I believe the ridicule is a powerful weapon against hate. It is also fun. I mean look at these folks–the ridicule pretty much writes itself.

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Hey ladies, he’s the master race AND he’s single

You will often hear those on the right prescribing intolerance to those on the left who do not, for instance,  support religious beliefs that discriminate against the LGBT community or think that statues that glorify white supremacists are appropriate in a pluralistic society.  During the last election, B-actor Scott Baio said that those who preach tolerance are the most intolerant he has ever met.  I think this is a misunderstanding of tolerance: if your ideas would attempt to rob others of their rights or treat them as second class citizens or perpetuate white supremacy I am not obligated to respect you or your ideas.  I must be tolerant only insofar as I recognize your right to hold awful ideas.

What popper was getting at (I think) was the idea that when confronted with ideas that are illiberal and that would undermine a liberal democracy we are not only permitted, but are morally obligated to confront those ideas forcefully.  Our forceful opposition may and perhaps even should contain downright disrespect for the ideas.  Let us all take heart: we are doing this, and doing it well! When the alt-right backed “free speech rally” came to Boston, believers in a free and open society were there to answer with vigor (and humor).

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But all that being said, let’s not forget Popper’s injunction: legal suppression of free speech is unwise.

Free Speech Matters

                The cause of the liberal society is served by free speech.  This is evidenced by the fact that those who which to stifle the open society have frequently resorted to the suppression of free speech in the name of social order (or even “tolerance”) as a way of maintaining an illiberal order.  The suppression of free speech has typically served those with an interest in consolidating and maintaining their economic and political power. A few examples:

1.       The Alien and Sedition Acts of 1798 were used to restrict the rights of immigrants and eventually to imprison newspaper editors and punish political opponents of the Federalist Party.

2.       Abolitionists were frequently the target of free speech suppression.  Eventually it became illegal to send abolitionist materials through the U.S. mail  as they were regarded as “inflammatory” and “seditious.” Interestingly, the postmaster general at the time invokes a crude version of the paradox of tolerance to justify the disregard for the 1st amendment in favor of the rights of southern slave states: “if the former be perverted to destroy the latter, it is patriotism to disregard them.”

3.       During the First World War, the Wilson administration actively prosecuted even minor acts of political dissent that were perceived as “anti-war” under the Espionage Act of 1917. This culminated in the thoroughly terrible Schenk v. United States decision that upheld the prosecution (persecution) of socialist anti-war activists.  This case made famous the lines by Supreme Court Justice and noted eugenicist Oliver Wendell Holmes that free speech can be restricted when it amounts to “shouting fire in a crowded theatre” (a false analogy) and presents a “clear and present danger.”  We see how easily the concept of clear and present danger can be widely interpreted to justify abuses by those in power.

4.      The Suppression of the free speech of African Americans was de rigueur during Jim Crow and the civil rights movement as it was a threat to the Southern social order.

5.       The Berkeley Free Speech Movement arose in opposition to campus policies that restricted on campus political activities, including anti-war and civil rights advocacy.  This restriction served the conservative leadership of the state of California. Given the sacrifices of the free speech movement (mass arrest and punishment) I am dismayed to now see University students advocate for restrictions on free speech.

6.       Various anti-protest bills  have been passed that suppress anti war and economic justice protests.  Be sure and stay in your “free speech zone” like a good little protester!

If you believe in the rights of immigrants, the rights of marginalized racial and ethnic groups, the rights of the LGBT community, social and economic justice, and the ability to protest unjust wars then you must recognize that the fight for all of those things has been inextricably tied to the fight for free speech! Are we really prepared to have our right to free speech be governed, controlled, or restricted by the vicissitudes of economic interests or political fashions as it has in the past? Besides, in suppressing free speech we may only further the ridiculous narrative of the “oppressed white man.”

The dark side of free speech can be effectively countered by the good of free speech—this was the lesson of the Boston protests.  Let us mind Popper’s injunction; we have not yet hit a point where the threat to a free and tolerant (in my sense of the word) society is so grave that we must resort to illiberal tactics like free speech suppression.  Once you cross that line it is difficult to come back again, and when political fortunes turn, the rules you put in place to protect the rights of the marginalized will be easily wielded against them. We already see on the right an effort to label Black Lives Matter a “hate group” that engages in dangerous “hate speech.”  The is already a lawsuit trying to accomplish this very thing. This lawsuit could create a legal precedent that would have a chilling effect on the civil rights group.

In the end, legal restrictions on free speech (I include state and federal laws as well as campus speech codes) accomplishes for freedom and an open society what nuclear armament accomplishes for human existence: mutually assured destruction.  The use of policies or laws banning speech are the nuclear option (as Popper implies) as opposing sides unleash restrictions on each other’s rights in the name of social order, tradition, justice or whatever else.  As we learn from WOPR in War Games   “the only winning move is not to play.”

 

Popper, K.R. (1971) The Open Society and Its Enemies Volume I: Plato. Princeton, New         Jersey: Princeton University Press

 

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