A top legal scholar
doubts those routinely
libeled by fascists may
lead their lives, '[or
have] their worst fears
dispelled, in a social
by these materials.'
The American Spark
Why The Race-Baiting of American Fascists Matters
By Cliff Montgomery - Sept. 25th, 2017
A few weeks ago, the Spark ran an article pointing out that the statements routinely put forward by modern-
day fascists in America may not be protected by the First Amendment, for the simple reason that their race-
baiting and various other screeds constitute group libel.
Many individuals may take exception to that analysis, and point out that ‘group libel’ and similar ‘hate speech’
legislation has been struck down by U.S. courts on numerous occasions. But in fact the action of our courts on
this delicate matter is quite divided, according to leading legal expert Jeremy Waldron.
His view on this point would seem to be pretty solid.
“Jeremy Waldron teaches legal and political philosophy at NYU School of Law,” declares the New York
University School of Law website.
“Until recently, he was also Chichele Professor of Social and Political Theory at Oxford University (All Souls
College),” adds the NYU School of Law.
“A prolific scholar, Waldron has written extensively on jurisprudence and political theory,” continues the NYU
website, “including numerous books and articles on theories of rights, constitutionalism, the rule of law,
democracy, property, torture, security, homelessness, and the philosophy of international law.”
Waldron’s books include Dignity, Rank, and Rights (2012), The Harm of Hate Speech (2012), Law and
Disagreement (1999), and The Dignity of Legislation (1999).
In 2009, Prof. Waldron gave a series of lectures at Harvard Law School entitled Dignity and Defamation: The
Visibility of Hate. His first lecture anchored the legal position that the race-baiting and intimidations we again
see from American fascists may well be considered acts of group libel.
Readers either may read Prof. Waldron’s exceptional 2009 Harvard lectures or read various quotes from the
lecture that the Spark provides below.
“[In 2008,] I published a short piece in the New York Review of Books, [. . . that] expressed some misgivings
about the arguments commonly used in America to condemn what we call hate speech legislation . . .
“[Such laws prohibit] statements ‘by which a group of people are threatened, insulted or degraded on account
of their race, color, national or ethnic origin.’ [. . .]
“I said: ‘[The Europeans may be correct] when they say that a liberal democracy must take affirmative
responsibility for protecting the atmosphere of mutual respect against certain forms of vicious attack.’
“I ended the piece with a reminder that:
‘[T]he issue is not just our learning to tolerate thought that we hate.’ [. . .]
‘Maybe we should admire some [high-minded] lawyer who says he hates what the racist says but
defends to the death his right to say it.
‘But [t]he [real] question is about the direct targets of the abuse.
‘Can their lives be led, can their children be brought up, . . . [or] their worst fears dispelled, in a social
environment polluted by these materials?
‘Those are the concerns that need to be answered when we defend the use of the First Amendment to
strike down laws prohibiting the publication of racial hatred.’ ” [. . .]
“Mostly, what I want to do is offer a characterization of the laws we find [. . .] in the other advanced
democracies of the world, and also as we have found them in America from time to time.”
“It is important to remember that opposition to hate speech regulation in this country is by no means
“Apart from the legal academy, which is divided on the matter, there is division among our lawmakers.
“There were state and municipal laws [banning such things as hate speech or group libel] to be struck down
in R.A.V. v City of St. Paul, in Virginia v Black, and in Collin v Smith [Village President of Skokie].”
“[Yet] there was a state law to be upheld in Beauharnais v Illinois.
“Not everyone in America is happy with the constitutional untouchability of race leaflets in Chicago, Nazi
banners in Skokie, and burning crosses in Minnesota.
“There has been an honorable impulse among some lawmakers in America to deal with this problem.
“And what we have always needed - before rushing to constitutional outrage on behalf of the First
Amendment - is to understand that impulse.”
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