The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Un-American activities


I've been struck by the similarity between recent calls for suppressing white supremacist speech and past calls for suppressing Communist speech. Of course, there are differences as well—there always are for any analogy—but I thought I'd note some likenesses:

Communist speech, 1950s White supremacist speech, 2017 Calls for speakers to be fired and blacklisted check check Claims that the speech falls outside the First Amendment check check … because the speech is inconsistent with basic constitutional values check (democracy, private property, free speech, religious freedom, etc.) check (equality) … because its supporters don't support free speech rights for others check check … because its supporters support violence and not just peaceful change check check … because similar movements overseas are responsible for killing millions check check … because similar movements in the U.S. are responsible for various terror attacks over the decades check check … because this speech isn't just speech but is itself violence check (e.g., "'words are bullets' and the communists know it and use them so") check Loose use of the labels to taint legitimate dissenters check (Communist, fellow traveler) check (fascist, racist)

And indeed, in the 1950s one of the leading intellectual forces on the Court behind allowing various restrictions on Communist advocacy (Justice Frankfurter) was also willing to uphold "group libel" laws in Beauharnais v. Illinois (1952); that's the one Supreme Court decision that authorized restrictions on racist speech, though it is widely viewed as no longer good law in light of later cases, just as some of the decisions upholding restrictions on Communist advocacy in the early 1950s are viewed as no longer good law. Similarly, Justice Jackson, though he dissented in Beauharnais, made clear that he would uphold narrowly crafted "group libel" laws, and he likewise voted to allow various restrictions on Communist advocacy. The main supporters of the rights even of Communists? Justices Black and Douglas, who also wrote the most speech-protective dissents in Beauharnais.

Communists, neo-Nazis, neo-Confederates—I can't stand them. They are supporters of ideologies of slavery and murder. They are losers, who lost for very good reason. But their speech should be protected, I think; and the cases for stripping protection from such speech have always been very similar.