One Man's Vulgarity Remains Another Man's Lyric: Defending Free Speech Absolutism

In the 1981 CBS TV movie Skokie, a largely Jewish suburb of Chicago learns that the American Nazi Party is planning to march through their city.  A Holocaust survivor (played by Danny Kaye, in one of his very few dramatic roles), organizes an effort to stop the Nazis – only to be defeated in court by two fellow Jews, who are lawyers for the ACLU.  The ACLU declares that the Nazis have a First Amendment right to march with swastika banners, and the courts – all the way up to SCOTUS – agree.  Danny Kaye’s character grudgingly comes to respect the ACLU lawyers, whom he initially sees as traitors to the faith.

The film was based on a true story from 1977, when the Nazis really did win the right to march in Skokie – a landmark case that those who campaign against permitting “hate speech” would very much like to see undone.

I was 14 when I saw that TV movie. I gave mama two weeks’ worth of my allowance, and she wrote a check to the ACLU on my behalf.  The Skokie case was why I became a member of the ACLU in my early teens, and remained one for more than 30 years.  As the son of a Jewish war refugee, I identified intensely with David Goldberger, the Jewish ACLU lawyer who defended the rights of Nazis and Klansmen.  This was the essence of patriotism, as best I could see it: to defend all speech, no matter how toxic, no matter how distasteful.  (For more on the Skokie case and Goldberger, read his memories of that era here.)

How out-of-touch that view seems today!

In 2021, cancel culture is on everyone’s lips – and everyone, it seems wants to cancel something.  The left pretends that cancel culture doesn’t really exist, and that it is instead long overdue accountability for reckless and harmful speech, but they’re quite happy to have journalists canned for tweets that fall short of the Woke mark.  Right-wing conservatives lament that a handful of Dr. Seuss books will no longer be in print – and at the same moment, call for banning the teaching of Critical Race Theory in American schools.    

Just this weekend we saw that the same conservatives who got angry when Disney fired a right-wing actor are up in arms about a Lil Nas X video filled with homoerotic and Satanic imagery. This afternoon, on my Twitter feed, a prominent left-wing pundit mocked the right-wing for being upset about the Lil Nas X video -- and then moments later, asked why the NCAA would permit Oral Roberts University to play in its basketball tournament, given that the school will not allow openly gay students to remain enrolled. 

It’s hard to find anyone who doesn’t want to deploy the power of the state, or the power of the marketplace, to make certain views or images illegal, or at least unacceptable.  The right wing wants schools that teach Critical Race Theory to lose federal funding; the left wants schools that will not accept GLBTQ faculty and students to forego the same.  Each side mocks the hypocrisy and laments the intolerance of their ideological enemies.  Each side has a partial point.

Free speech absolutism of the kind I grew up on is out of fashion.  Last month, two elderly icons of liberty died days apart: the poet Lawrence Ferlinghetti and the pornographer Larry Flynt.  The men did not just share initials, they each won landmark First Amendment cases.  Each devoted his life to the idea of intellectual and artistic freedom; Flynt, wounded by an evangelical Christian would-be assassin, gave his legs for the cause.   There were lots of tributes to Larry and Lawrence, and I honor them both, but my grief was sharpened at the realization that the values for which they fought so hard are increasingly passé.

Contrary to what youngsters on Twitter say, hate speech IS free speech, as the courts have ruled again and again. (See, for example, the unanimous 1992 SCOTUS ruling on the right of the Klan to burn crosses.) Indeed, we only need laws to protect the speech that someone finds hateful, hurtful, or depraved.  That which is popular needs no defense. That which is vulgar, outrageous, hurtful, provocative and offensive?  That’s what needs protecting.  My friends on the far right and the far left sneer that “error has no rights,” borrowing a phrase (probably unwittingly) from the pre-Vatican II Catholic Church.   Whether they want the state or the marketplace to do the dirty work, they are all eager to impose limits on what others can say, be, or display.

We have a right to be offended.  We have a right to let people know that they offend us.  If you don’t like Nazis marching through your neighborhood, you have every right to organize a peaceful counter-protest.  If you don’t like gay music videos, you have every right to tweet that gay music videos are, in your opinion, harmful.  What you don’t get to do in a civilized society is try and find out who those Nazis are, and get them fired from their jobs.  What you don’t get to do is urge your local internet service provider to block other people from seeing those Lil Nas X videos that worry you so.   

Reverence for free speech means reverence for pluralism.  That means accepting that other people will think differently from you.  That means supporting the right of trans kids to transition – and it means supporting the right of a writer to say that that transitioning is madness.  It means not disciplining a teacher for reading a book to her kindergartners that is supportive of trans identity – and it means not trying to get “transphobic” pundits fired from their writing gigs.  It is the hard work of remaining committed to your own values without seeking to impose those values on others, recognizing that others’ commitments are no less valid for being incomprehensible or unreasonable in your eyes.  It is the humble acceptance that truths are multiple rather than singular.  It is the radical belief that a good society is one which can allow people who hold contradictory and irreconcilable truths to somehow share the same public square.

David Goldberger did not defend the Nazis because he was a self-hating Jew, or because he thought that National Socialist ideology had any redeeming virtues.  He defended the Nazis because he believed, rightly, that free speech for all is the backbone of democracy.    Allowing the erosion of free speech in the name of social justice or any other seemingly noble cause is the first step towards tyranny.

In June, it will be 50 years since the Supreme Court decided Cohen v California.  In that case, a young man had been arrested for wearing a denim jacket on which he had embroidered the words, “fuck the draft.”  The state of California had declared the jacket obscene, beyond the scope of the First Amendment.  SCOTUS disagreed.  Writing for the majority, Justice John Marshall Harlan declared, “One man’s vulgarity is another man’s lyric.”  He didn’t defend the jacket because the speech was political, or because he happened to agree with it – he and the majority defended it on the grounds of radical pluralism.  People can never be expected to agree on anything, nor should they be compelled into agreement.  What you abhor, I love; what you love, I abhor – and democracy depends on both of us being allowed to live our lives and express our views without risk of prison, or physical assault, or economic ruin.

In the end, the call for a return to free speech absolutism is a call to temper our outrage and our smug certainty with humility.  Your lyrics are vulgar to me – how strange and wondrous it is that we should hear the same thing so differently!  Your beliefs stand in stark contrast to my own, and they even frighten me – and yet we must find a way to live in peace, if not in close friendship.

In every marriage, there is a gulf.  Even the most enmeshed and bonded of couples soon discover that there is something about the other person that they can never fully grasp, never truly know.  There are things they do that annoy you – and bewilder you.  In the healthiest of relationships, we learn to accept that even our soulmates hold within them some mysteries we cannot hope to comprehend.  If we’re wise, we let those differences be. 

In his Letters to a Young Poet, Rilke writes:

Once the realization is accepted that even between the closest people infinite distances exist, a marvelous living side-by-side can grow up for them, if they succeed in loving the expanse between them, which gives them the possibility of always seeing each other as a whole and before an immense sky.”

A civil society is like a healthy marriage in which we learn to love the expanse between ourselves and those whose values are alien to our own.  The infinite distances will always exist, and our neighbors’ lyrics may always be vulgar to our ears.  We cannot change them, we may never even like them, but we can share the same country, and the same sky. 

At the heart of what it means to be an American is to understand that a commitment to protecting unlimited free speech is the practical and necessary application of loving the inevitable expanse between us.