Claire Berlinski, ricochet.coman [article includes video]
Berlinski image from article
Let’s review what happened yesterday:
The polls are still putting Trump ahead in Tennessee, Georgia, and Virginia. Substantially ahead. The only Super Tuesday state in which he’s not leading is Texas — Cruz’s home state.
For years I’ve had an obviously narcissistic conceit. No one appointed me, but I’ve taken it upon myself to be the American Ambassador, everywhere, mostly because I’ve always been baffled and not a little angry that our appointed ambassadors don’t see it as part of their jobs to defend Americans against calumnies in the foreign press and imagination. I don’t expect them to do that with outrage, or undiplomatically, just calmly to confront lies with facts, and point people to sources where they can learn more, if they’re so inclined. I’m not rude when people say crazy things to me about Americans; I’ve almost always judged them to be misinformed, not bad. But I’ve never absented myself from the conversation, either. I’ve seen it as my personal responsibility to give them better information.
Years of living as an expatriate has made me keenly aware that the United States is unusual — that is to say, exceptional — in many ways. But two ways, in particular, strike me as particularly unusual and are for me a source of real pride.
The first is our conception of freedom of expression. I can’t tell you how many people don’t understand it at all, or don’t believe me when I tell them, “There is literally nothing you’re forbidden to say in the United States.” In Turkey, I’d read in the press and be told, repeatedly, that “every advanced country” has laws against “hate speech,” or that “no country” would allow certain kinds of people to hold rallies.
Again and again, I’d say, “No, that isn’t true.” It does happen to be true of most developed countries. You all know why those neo-Nazis in Germany don’t brandish swastikas: They’d go to jail. Holocaust denial is illegal in France. Britain has extensive “hate speech” laws. When our campus wingnuts grow up, we may have them, too. But we don’t have them now. Our campus wingnuts remain, for now, campus wingnuts.
I like explaining this to people. I like explaining the brilliance of the phrase, “Congress shall make no law.” It’s quite different from constitutions that splendidly express a positive commitment to freedom of expression. Our constitution takes a much dimmer view of abstract promises to have Good Things. Ours denies the government the power to make any law infringing upon speech. It’s a big difference, and a consequential one.
People tend not to believe this at first, or don’t quite understand it. It’s a hard concept to understand, especially because it’s deeply unnatural, or so I’ve concluded from conversations in which I explain it. It seems, to most people, appalling and indecent to allow people who seem to mean it to march about shouting, “Heil Hitler.” In countries where ethnic tensions have in recent memory resulted in ethnic cleansing, it also seems, frankly, stupid. Do you want to see a Turkish mob screaming that they’re going to do to the Kurds what they did to the Armenians? No, neither do I. So yes, I do understand why well-meaning Turkish liberals think hate speech laws in Turkey might be an excellent idea. I disagree, because I know they’ll be used, in reality, to prosecute anyone on the wrong side of the government. But well-meaning people can disagree.
Usually I tell people about Brandenburg v. Ohio and National Socialist Party of America v. Village of Skokie. These really were landmark cases. I think even many Americans, if not most, aren’t fully aware that our modern conception of freedom of speech dates from these verdicts almost as much as it does from the Constitution itself.
Clarence Brandenburg, as I’m sure you all know, was a Ku Klux Klan member who held a rally in Hamilton County, Ohio. “We’re not a revengent [sic] organization,” he said, “but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” Others in the film footage were hooded, but they were armed, burning crosses, and muttering, “This is what we are going to do to the [racial epithet],” “Send the Jews back to Israel,” “Bury the [racial epithet],” “Freedom for the whites,” and “[racial epithet] will have to fight for every inch he gets from now.”
Brandenburg was convicted, sentenced to prison, and fined $1,000 under Ohio’s criminal syndicalism laws, which made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” or to assemble “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Brandenburg (or his ACLU lawyers, to be precise; he wasn’t that sharp) argued that these laws violated the First Amendment. The case went to the Supreme Court, and the Court unanimously agreed with him. They struck down Ohio’s laws.
The Court used a two-part test to evaluate speech: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” [My italics.] That “and” is important.
I’m sure I’m telling you nothing you don’t know, but I promise you that no one outside of the US has heard of the Brandenburg test. I don’t know why. You’d think explaining this would be part of our public diplomacy worldwide, because it’s such an important part of our history, culture, and mores, and it’s something of which we can be so justly proud.
Sometimes they think I’m just making this stuff up. So I show them this:
There you go. We Americans do not ban this kind of speech or that kind of rally.
One of the most common wacko beliefs about the US is that we literally forbid anti-Semitic speech. Yes, this is actually a conversation you can really have, in many parts of the world — you can find real people who believe there’s something hypocritical about our objections to Iran’s sponsorship of Holocaust-denial conferences, because at least they allow such things to be said, whereas we just lock up our anti-Semites and our Holocaust deniers.
Yes, many people believe this. But no, it’s not, generally, because they’re stupid. How could people know otherwise, if that’s what they’ve heard everywhere and we make no effort to explain our culture and our legal system? That’s why they need Ambassador Berlinski. Fortunately, that one’s easy to disprove. “Ah,” I’ll say, laughing. “Let’s see. Google David Duke.” They may not know his name, but they pretty much always know what the Klan is. I guess we must make a lot of movies about the Klan.
I’m proud of our First Amendment.
But there’s another thing of which I’m just as proud, and I’m not sure whether it makes sense to be proud of both at the same time, although I am. I’m proud that we’re the kind of country that can let Nazis and Klansmen disgrace themselves in public, because Americans are basically decent. Such views just could not gain wide purchase.
I’ve asked myself many times whether these court verdicts truly represented an originalist interpretation of the First Amendment. Did they reflect a principled commitment to the plain meaning of the Constitution? Or is it possible that this jurisprudence seemed a plausible interpretation only because these cases followed such a long period of peace, prosperity, and social stability? Did we come to see ourselves as too decent to be corrupted by such obviously vile ideas? So decent that the Supreme Court justices just knew, deep down, that American Nazis and the Klan weren’t ever going gain purchase in the United States of America? Yeah, we can put up with the occasional Sieg Heil and a few flaming crosses. That stuff’s never going to get anywhere with Americans these days.
That’s the other calumny I try to correct everywhere I go. The notion that Americans are deeply racist. I would have sworn, until yesterday, that people who insisted to me that this was still a significant political sentiment in American life were out of their minds. I genuinely thought this was, overwhelmingly, a left-wing fantasy.
I still believe the first part to be true.
But I believe Trump knew exactly what he was saying. There’s no such thing as an adult American who’s never heard of the Ku Klux Klan. There’s no such thing as an adult American who’s never heard of David Duke.
The United States’ history of practicing human bondage is real. It was based on views about race still espoused by David Duke. This is known to every American adult.
This one wasn’t the hypersensitive Left’s wild imagination. This was the real thing. People who vote for him tomorrow can’t say they have no idea what he stands for.
