Is It Time for America to Start Treating Racist Speech Differently?

On January 11, 2018, C. Christine Fair, an associate Georgetown University professor, allegedly called German Federal Police officers “f---ing German Nazi police” during an argument over her luggage at Frankfurt International Airport. [1] She was immediately arrested, charged with criminal defamation, and fined approximately $260 for the comment. [2] In contrast, on August 11, 2017, hordes of white supremacists marched through the streets of Charlottesville, Virginia, carrying lit tiki torches as they heiled and chanted anti-Semitic Nazi jeers as part of a “Unite the Right” rally. [3] Of the more than 250 khaki-clad white nationalists, only four were arrested that day. [4] [5]

These two episodes demonstrate the truthfulness of Chief Justice Roberts’ declaration at the end of the majority opinion in Snyder v. Phelps: “As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” [6]

While western European countries like Germany, Austria, France, Poland, Slovakia, Spain, and Switzerland have legislation that in some way criminalize Nazi speech, the United States does not have laws that prohibit Nazi speech. As anti-Semitism grows in the United States, though, is it time for the United States to consider a slight deviation from its “different course?” [7] [8] [9]

Any American legislation that bans or otherwise criminalizes Nazi, white supremacist, or similar speech, would likely be challenged by cases like the aforementioned Snyder and Texas v. Johnson, which enshrined as precedent the idea that “[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” [10]

Putting aside the constitutionality of such laws, though, passing such legislation in the United States would not only be ill-advised, but counterproductive. [11] Such laws would be a rallying point for those most affected by the legislation: white supremacists and racists. [12] As Steven Shiffrin put it, “What makes this kind of law so potentially counterproductive is that its transformation of public racists into public martyrs would tap into widespread political traditions and understanding in our culture.” [13]

Simultaneously, the creation of those laws would signal to those groups that the government thinks enough of them to attack them. Being marked an adversary would at once empower and provoke those groups, providing motivating evidence of government-recognized validity and the need to do even more to act out against a now actively hostile government.

Given what happened last summer in Charlottesville, the last thing America’s white supremacists need is more motivation.

This post is a student blog post and in no way represents the views of the Fordham International Law Journal.