The events in Charlottesville last weekend have provoked understandable fear and outrage. Potential sites for future “alt-right” rallies are on edge. Texas A&M University, the University of Florida and Michigan State University have all decided to cancel or deny prospective events by white nationalist Richard Spencer. All cited safety concerns. All raise serious First Amendment issues.
First, he is not a student at any of the aforementioned universities and was not invited to the campuses by students or faculty. He was seeking space on campus that is available to the general public to rent out. In at least some cases, courts have found that public colleges have a somewhat freer hand to regulate the speech of non-students on campus who are not invited by students or faculty.
Second, although a general, unsubstantiated fear of violence is not enough to justify cancelling an approved speaking event, recent violence in Charlottesville and the fact that one of the organizers of the Texas A&M rally used the promotional tagline “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M” make security concerns more concrete, at least in the short term. The more concrete the security concerns are, the easier it is to justify the cancellation or denials.
Third, as David Frum, Dahlia Lithwick and Mark Joseph Stern point out, judges might decide cases differently when protesters are liable to show up brandishing guns, as happened in Charlottesville. Bad facts make bad law, so the saying goes. The general legal standard now is that if a public college opens itself up to outside speakers, it cannot engage in viewpoint discrimination. Most cases of prior restraint censorship will fail in court under this standard. But in the immediate aftermath of the tragedy in Charlottesville, judges may look differently at these facts.
If you were to listen to scholars like Richard Delgado, the response should be to pass laws, to put people in jail, to do whatever it takes to stop the Nazi contagion from spreading. It’s a popular argument in Europe and in legal scholarship, but not in American courts.
There are a few problems with this response that free speech advocates have long recognized. For one, it doesn’t necessarily work; since the passage of Holocaust denial and anti-Semitism laws in Europe, rates of anti-Semitism remain higher than in the U.S., where no such laws exist. In fact, the Anti-Defamation League found that rates of anti-Semitism have gone down in America since it first began measuring anti-Semitic attitudes in 1964.
What’s more, in the 1920s and 30s, Nazis did go to jail for anti-Semitic expression, and when they were released, they were celebrated as martyrs. When Bavarian authorities banned speeches by Hitler in 1925, for example, the Nazis exploited it. As former ACLU Executive Director Aryeh Neier explains in his book Defending My Enemy, the Nazi party protested the ban by distributing a picture of Hitler gagged with the caption, “One alone of 2,000 million people of the world is forbidden to speak in Germany.” The ban backfired and became a publicity coup. It was soon lifted.
We cannot forget, too, that laws have to be enforced by people. In the 1920s and early 30s, such laws would have placed the power to censor in the hands of a population that voted in large numbers for Nazis. And after 1933, such laws would have placed that power to censor in the hands of Hitler himself. Consider how such power might be used by the politician you most distrust. Consider how it is currently being used by Vladimir Putin in Russia.
What does history suggest as the best course of action to win the benefits of an open society while stemming the tide of authoritarians of any stripe? It tells us to have a high tolerance for differing opinions, and no tolerance for political violence. What distinguishes liberal societies from illiberal ones is that liberal societies use words, not violence or censorship to settle disputes.
差別主義者の大学での講演会がアメリカなんかでも中止されている、と。
１）話し手が当該大学の学生か、どうか、２）暴力の危険がある程度具体的か などが考慮されている、と。
しかし、
あ）例えば、反ユダヤ主義的言論を抑止しても、反ユダヤ主義が抑止されるわけでもなく、実際、反ユダヤ主義の言論が法的に禁止されている欧州のほうがアメリカより反ユダヤ主義は活発。
い）権力者に検閲する権限を与えると、権力者のやりたい放題になる危険がある。実際、ヒットラーやプーチンは、そのような権限を濫用した。
結論として、独裁主義に陥らず、開かれたリベラル社会であり続けるには、言論は許容、暴力は禁止という立場を維持すべきである、と。
