There is danger in the pandering of hatred that goes beyond the freedom of expression. Is there a right to profit from supplying the seeds of destruction to those who have the need to blame others for the poverty of their existence?
Bar owners who continue to serve drunks can be held responsible for the deaths of those later killed in traffic collisions, but to what extend should those who peddle the rhetoric of hatred, bigotry, and violence be held responsible for the consequences of their merchandising?
These were some of the questions that confronted us in 1980 when I represented a survivor of Auschwitz against those who denied the Holocaust. Alleging an "Injurious Denial of an Established Fact," I argued that someone should not be able to grasp a blatant lie in one's hand and slap another person in the face with it. The matter was resolved when a Los Angeles Superior Court judge ruled: "this Court does take judicial notice of the fact that Jews were gassed to death at Auschwitz Concentration Camp in Poland during the summer of 1944 . . . . It is simply a fact."
The defendants were the Institute for Historical Review (IHR) and its parent company, the Liberty Lobby—which was a conglomerate of radical right-wing organizations that marketed individualized packages of hatred to those with particular proclivities. The IHR was attempting to move onto college campuses by circulating a slick "scholarly journal" that offered pseudoscientific theories denying the existence of the Nazi genocide of European Jewry. We were successful at blunting its collegiate campaign; however, 35 years later, these and similar organizations—now making full use of the Internet—continue to promulgate lies for profit. The danger of these lies threatens everyone, not just those targeted by the propaganda of violent hatred.
Freedom of Speech
James Madison, the author of the Bill of Rights, considered the First Amendment to be the most important, since without the freedom of speech all others are forfeit. The ink was hardly dry on the document before Congress enacted the Sedition Act in 1798 to punish "scandalous and malicious writings" about the president or the government which caused them to be held in "contempt or disrepute." The Act expired with the election of Thomas Jefferson in 1800, and President Adams later considered the Act to be the greatest mistake of his administration. Opposition by Jefferson and others, who encouraged nullification of the Act, planted the seeds of disunion that later led to the Civil War.
The Supreme Court never had a chance to review the Sedition Act, but it later held that the First Amendment protected all speech, except "the lewd and obscene, the profane, the libelous and the insulting or 'fighting' words—those which by their very utterances inflict injury or tend to incite an immediate breach of the peace." In a Ku Klux Klan (KKK) case in 1969, the Court allowed racist and hate-filled speech, unless it was directed "to inciting imminent lawless action and is likely to incite or produce such action." More recently, in 1992, the Court struck down an ordinance that criminalized racist and hate-filled nonverbal speech, such as cross burnings, as contravening the First Amendment. The Court focused on the mode of expression, rather than the content. Hate speech is protected unless it leads to imminent violence.
All of this legal activity concerned itself with the criminalization of speech, both verbal and nonverbal; however, civil litigation against hate speech brought by those who are offended or affected by the speech has a different legal history. Henry Ford, the automobile magnate, was a notorious anti-Semite who directed his newspaper to attack an agricultural cooperative movement as defrauding American farmers on behalf of an international Jewish conspiracy. He was personally sued for libel by the movement's leader, and two years of litigation ensued, during which it became apparent that Ford would be unable to prove the truth of his allegations. To avoid having to testify in the trial, Ford issued a generalized apology to the entire Jewish people that had been secretly prepared by the head of the American Jewish Committee. Ford was able to escape civil liability and, undeterred, went on to publish his collection of articles in an anti-Semitic pamphlet, The International Jew, which is still available on the Internet. He also funded the printing and distribution of 500,000 copies of The Protocols of the Elders of Zion, a fraudulent incitement to racial and religious hatred.
The Civil Rights Act of 1964 imposed civil liability on employers for tolerating "hate speech" by their employees, if it created a "hostile or offensive work environment." As a result, many universities adopted "speech codes" regulating the speech of students and faculty. In an attempt to avoid a hostile educational environment, university speech codes can also create a lack of tolerance for a diversity of opinion. Speech codes can cause nonconforming students to self-censor educationally valuable participation in discussions. It is a delicate balance, and some of the codes have been struck down as being an unwarranted infringement of First Amendment rights.
Among the first exceptions to free speech was the "lewd and obscene," usually referred to as pornography. Originally prohibited altogether, the portrayal of sexual subjects for the purpose of sexual arousal is no longer a crime—as long as it does not depict children and minors are not exposed to it. There are parallels between pornography and hate speech in that, while offensive to many, if not most, people, they are allowable in order to preserve the greater good of free expression. In both cases, potentially harmful material is distributed for profit in order to satisfy the prurient and unhealthy interests of the consumer.
Free speech—even that which is repugnant to most people—is so important that the American Civil Liberties Union has defended the right of the KKK to distribute racist literature promulgated to preserve the purity of "white blood." Among the most alarming hate speech is the growing popularity of white power, racist, and anti-Semitic music. Primarily presented in the genres of rock and country, the music employs explicit lyrics to appeal to the unique prejudices of its listeners. While country hate music is primarily directed against the federal government and blacks—white power music targets Jews, homosexuals, immigrants, and anyone not considered to be "white." National Socialism heavy-metal music promotes white supremacy, racial separation, anti-Semitism, and Nazi paganism. In the vernacular of hatred, nonwhites are "mud people," and Jews are the "devil's spawn."
Internet Hate Speech
With the advent of the Internet and social media, hate groups have extended the range and ferocity of their attacks. The radical right-wing organizations we confronted in the 1980s now have colorful and dynamic web pages to attract visitors and new members. The Institute for Historical Review maintains a website and page on Facebook, where it is "liked" by 674 friends. Willis Carto—who founded the Liberty Lobby and IHR and later lost control to staff members during a palace coup—has rebounded with The Barnes Review, which peddles hate literature on the Internet in competition with his former organizations. In addition he launched the American Free Press, which promotes anti-Semitic conspiracy theories and publishes online articles by Ron Paul, Pat Buchanan, and other conservative writers.
Internet websites and social media were in the news following the three most recent mass shootings. On social media, Chris Harper-Mercer, a college student, described himself as a conservative Republican with a disdain of organized religion. He expressed an admiration of the on-air murderer of two television employees in Virginia, and he posted a photograph of himself with a rifle on Facebook. Regarding the Virginia shooter, Harper-Mercer wrote, "Seems the more people you kill the more you're in the limelight." His Gmail address was IronCross, a seeming reference to Nazi Germany, and he was found to have shared Nazi videos on the Internet. Harper-Mercer, clad in body armor, carried six guns onto a college campus in Southern Oregon on October 1st, where he confronted students and faculty in classrooms. Forcing students to state their religion, he killed those who responded "Christian," saying "you're going to see God in just about one second." Eight students and their professor were murdered and nine wounded before Harper-Mercer committed suicide.
Hoping to start a "race war," Dylann Roof, massacred nine African Americans as they attended services in a historic black church in South Carolina in June 2015. The twenty-one-year-old had created a website, the Last Rhodesian, on which he promoted racial apartheid. He researched his views on the website of the Council of Conservative Citizens (CCC)—formerly known as the White Citizen's Council—the Nation's largest white nationalist group. He also posted comments on the neo-Nazi website, Daily Stormer. Roof was indoctrinated to believe that "Niggers are stupid and violent," and "someone has to have the bravery to take it to the real world." Roof demonstrated his bravery by firing (and repeatedly reloading) his semi-automatic handgun into his helpless victims as they were praying.
Another racist predator, John Russell Houser randomly sprayed patrons with bullets in a Louisiana movie theatre in July 2015, murdering two people and wounded nine—before killing himself. Houser had adopted the Nazi flag as a symbol of his resistance to the government, and he supported KKK Grand Wizard David Duke. Writing on a neo-Nazi political website, Houser emphasized the "power of the lone wolf." On other websites, he expressed anti-Semitic thoughts and supported white power. He wrote that "Hitler is loved for the results of his pragmatism" and discussed the "role of Blacks in building and maintaining this alliance of evil that literally grips the globe." On another, he commented, "It is a shame Tim McVeigh [the Oklahoma City bomber] is not going to be with us to enjoy the hilarity of turning the tables with an IRON HAND."The Greatest Terrorist Threat to Americans
Right-wing "lone wolf" terrorist attacks by single individuals are now the greatest terrorist threat to the people of the United States. The Southern Poverty Law Center, which monitors Nazi and white supremacist websites, such as Stormfront, has documented that more than 100 people have been killed by individuals actively involved with Stormfront in the past five years. A recent wave of arsons at black churches has the FBI investigating them as hate crimes, and President Obama has stated that right-wing extremists pose the greatest danger to the United States. West Point's Combating Terrorism Center documents that since 9-11, 50 people have been killed in the United States by Islamic extremists, while 254 people have been murdered by right-wing or sovereign-citizen extremists—five times as many. Mostly disrupted, there have been only six terrorism-related plots by Islamic extremists in the United States each year since 9-11, while there has been an average of 337 planned attacks each year by right-wing extremists—more than 56 times as many!
The Department of Homeland Security (DHS) has determined that the current economic and political climate is fueling resurgence in radicalization and recruitment of domestic right-wing terrorists. The Department warns that returning military veterans (facing difficulties reintegrating into a worsening economy) "possess combat skills and experience that are attractive to rightwing extremists. DHS . . . is concerned that rightwing extremists will attempt to recruit and radicalize returning veterans in order to boost their violent capabilities."
As the Council of Conservative Citizens (CCC) adopted its new name and later influenced Roof, it refocused its efforts from fighting school integration to raging against interracial marriage and illegal immigration. Contributing to mainstream Republican presidential candidates, including Ted Cruz, Rick Santorum and Rand Paul, the CCC opposes "all efforts to mix the races," and believes that "God is the author of racism." It urges the control of immigration to force "countries like Mexico [to] stop dumping their murderers, rapists, those carrying AIDS and other communicable diseases and gang members on America's door step."
Political Hate Speech
In an environment of unrestrained speech, there is a danger that politically hostile hate language will not be sufficiently moderated by voices of reason and caution, and that political dialogue will be moved in a direction that is harmful to freedom. It is not difficult to reflect upon the circumstances in Germany that gave rise to the Nazi movement and the dictatorship of Adolf Hitler. It is easy to make comparisons to the gaggle of Republican candidates, each seeking to outdo the other in proclaiming that he or she is strong enough to confront the immigration problem and to reassert the military might of the United States to defeat Islamic terrorism.
Looking more closely at just one of the candidates—the current leader in the presidential primary race—Donald Trump is the epitome of what could go wrong with politically promoting a "strong man" to deal with America's problems. A website, Women for Trump, gushes that "Trump reminds us of something we haven't seen in a long time; strong, Alpha males in politics. Many . . . have forgotten what a MAN is."
Trump inherited a real estate empire created by his father, Frederick Christ Trump, who was arrested at a KKK rally in 1927. In 1979, Fred Trump was sued for refusing to rent to African Americans and for forcing blacks to vacate his premises. The civil-rights case was settled with a consent decree; however, the Justice Department later reported that Trump agents continued to create a "substantial impediment to the full enjoyment of equal opportunity." Trump junior has described Mexican immigrants as rapists and murderers, and has called for the erection of a great wall on the southern border to keep out illegal immigrants.
The United States has already built more than 700 miles of walls and deploys a comprehensive—and expensive—system of cameras, sensors, and drones along the southern border. Corporate America, which presently operates private prisons for corralling illegal immigrants, is lobbying to increase the privatization of border security. Can fascism—complete corporate control of the government—be far distant under the administration of a President "the Donald" Trump?
The Daily Stormer, a neo-Nazi news site criticized by other white supremacists as overly promoting Nazism, endorsed Trump for president saying he is "willing to say what most Americans think."
One would imagine that with his vanity comb-over, red face, twisted mouth, and outlandish statements, Trump would be an irrelevant and marginally entertaining spectacle in the campaign. Whether his status as a front-runner is because of, or in spite of, his bigoted statements about people of color and misogynistic references to women, Republican candidates are being pushed toward the extreme right—along with the entire electoral dialogue. One must remember that Hitler came into power as the result of a popular election concerned with similar issues.
Despite the artificial inflation of the stock market and glowing job reports reflecting part-time and marginal employment, Americans—small business owners, as well as workers—are hurting. The middle class is being eliminated, along with its moderating influence on social issues. Economically distraught Americans are looking for political leadership, but like Germans in the 1930s, voters in the 2016 election are being offered scapegoats and are being led down the road to national disaster and genocide.
The Ten Stages of Genocide
Thirty-five years ago, we fought a legal battle against those who denied the Holocaust. We were successful in our efforts; however, denial of the existence of the Nazi campaign of genocide against European Jewry continues today as the final stage of that genocide. Writing in 1996, Gregory Stanton, the president of Genocide Watch, advised Congress that genocide takes place in ten stages, the last of which is that "The perpetrators . . . deny that they committed any crimes."
Looking at these various stages, we can see the current buildup of hatred towards people of color, particularly immigrants, and non-Christians, primarily Muslims. Much like Hitler in the 1930s, American politicians are seeking to blame others for their own failure to govern. They want to direct national resources towards militarization to corral and punish those they blame for their political failures, instead of confronting the economic and environmental crises that threaten the Nation and the future of its children.
America is well beyond the first stage, in which people are divided into "us and them." Although an African American now occupies the White House, Ben Carson, a black conservative Republican candidate, easily said that no Muslim should ever be elected president. Trump believes there is a "Muslim problem in the world," and he seemed to condone "getting rid" of all Muslims. Trump also promises the mass expulsion of all eleven million undocumented immigrants, whom he says are a part of the "dumping ground for the rest of the world." By referring to immigrants as rapists and murders, Trump is threading onto the grounds of the second and third stages of genocide in which "symbols are forced upon unwilling members of pariah groups" and the humanity of a group is denied. Others, who erroneously insist that all Muslims intend to impose their system of Sharia law onto the United States, are seeking to stigmatize and label all Muslims.
Other stages include symbolization in which names or other symbols are used to classify hated groups; discrimination in which law, custom, and political power is used to deny the rights of a discriminated-against group; and dehumanization in which the humanity of the hated group is denied. Although Hitler often referred to Jews as Judenscheisse (Jewshit), it was the manner in which he relentlessly blamed the "Jew" that made the word itself despicable in the minds of Germans. Today in America, our politicians may not use crude slang, but as they continually rage against immigrants and Muslims, and it is clear they intend the words in the most derogatory manner possible.
There is evidence the government is involved in the fourth stage—the organization of "special army units or militias." In January 2006, the Department of Homeland Security awarded a $385 million contract to a former Halliburton subsidiary, Kellogg Brown & Root, to provide detention centers in the United States to deal with “an emergency influx of immigrants into the U.S." Moreover, it is ominous that the government has created a system of privately-operated detention centers for the housing of undocumented immigrants and their children—where detainees currently work for slave wages. This process of organized detention—concentration—is especially alarming if one imagines the force and violence that would be required to round up and deport eleven million people.
America already occupies the sixth stage in which hate groups "broadcast polarizing propaganda." The foundations are being laid for the seventh and eighth stages in which "victims are identified and separated out because of their ethnic or religious identity," and the populace is indoctrinated with "fear of the victim group."
All that may be left is the ninth stage—extermination—in which the killers "do not believe their victims to be fully human." Applying the best corporate practices, how much more cost effective would it be to work detainees to death and to efficiently exterminate them—particularly children who are too young to work—rather than to bother with the expense of deportation? Perhaps factories could be built next to the detention facilities to take advantage of dollar-a-day labor that the government requires private contractors to pay to undocumented detainees?
Looking beyond the spurious political matters of immigrants and Muslims, there are the very real and critical issues of economic failure, climate change, and environmental degradation—all of which threatens the ability of the Nation to feed its people. Faced with the ongoing loss of Western crop land to drought and the lack of irrigation and drinking water, how long will it take for groups to militantly organize against each other to control the precious food and water supplies?
Following elimination of the middle class, the division of society between the wealthy and the rest may drive the extinction of masses of people without reference to religion or race. The few who possess the wealth and power may simply believe elimination of excess "eaters" is a matter of the survival of the fittest and the simplest way to deal with the crisis.
What Can Be Done?
Recognizing that hate speech is destructive—not only to freedom, but to the political ability to compromise, collaborate, and to solve serious economic and environmental problems—what can be done to moderate the effect of such speech? Consistent with First Amendment protection, there are several ways to approach the problem.
First, we must recognize there is a difference between civil and criminal legal solutions, with the Constitution only prohibiting the government from making any law "abridging the freedom of speech." Other countries do not offer such protection, or otherwise do not extend its coverage to hate speech. European countries, especially those which suffered under the heel of Nazism, explicitly criminalize Holocaust denial and other forms of hate speech. For example, one of the defendants in our civil case in 1980 was a Swedish national who was criminally prosecuted in Sweden for using the same language we found offensive in our civil lawsuit. Inasmuch as civil actions brought by plaintiffs personally harmed by hate speech should not violate the First Amendment, they are a legal remedy that can be relied on to combat hate speech directed at individuals, especially words which are violent, untrue, and libelous.
Secondly, continuing to equate hate speech with pornography, we find that the United States has achieved a certain balance in regulating pornography and violence on the radio, television, and in other forms of mass entertainment. Radio and televisions stations that broadcast obscene, indecent, or profane material may have their licenses revoked by the Federal Communications Commission. The FCC defines profane material as "language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." Radio "shock jock" Howard Stern was fired from public radio after his broadcaster was fined $495,000 for allowing Stern to air an explicit discussion of anal sex and the use of the N-word.
In February 2015, the FCC voted to regulate Internet providers as public utilities. Although primarily intended to ensure net neutrality, it appears the FCC may have the power to regulate those forms of speech which are generally agreed to constitute exceptions to the First Amendment. Just as hard-core pornography, graphic violence, and vile hate speech can be controlled over the public airwaves, defining the Internet as a public utility provides a basis for similar regulation of the Internet and social media. Everyone who watches television and listens to the radio is well aware that nudity, profanity, and violence are currently allowed during programming. If that level of regulation is acceptable to most people in a free society, then the curtailment of the most violent and dangerous hate speech on the Internet may be constitutionally acceptable.
Such steps are mere palliatives, however, and a long-term cure for the disease of hatred and bigotry must result from a fundamental shift in the manner in which we, as free people, govern ourselves. Restoration of the middle class—and the wisdom it brings to public discourse—can only result from effective representative democracy. As long at those who are elected to manage the government are more responsive to corporations and special interest groups than to those who cast the ballots, the United States government will continue down the path towards fascism and genocide.
What must take place is a mass, nonpartisan, and nonviolent movement by the ordinary people of the United States to achieve a government that is responsive to their interests and that cares for their needs. One thing every American should have in common is that it is the People, rather than corporations, who must control their own government.
The United States Voters' Rights Amendment (usvra.us) is a comprehensive voters' Bill of Rights with multiple sections to remedy all of the ills of the current electoral process at once. Enactment of the Amendment would transform the United States government into finally becoming a truly representative democracy. Ratification would be a major step towards ensuring equality of opportunity and freedom and, ultimately, the reduction and elimination of racial, social, and religious hatred and bigotry. Millennials, the inspiring generation of young people now coming of age in America have the most to lose, which is why they must lead the march, but we all have a responsibility to pave the way.
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