I don’t have to drive too far from my home to find real racists. Within an hour’s drive, I can find true white-sheet-wearing KKK members, and I can find Black Panthers. Their mutual, seething hatred of each other based on skin color would, in a simple physics equation, cancel each other out. But in matters of race, these groups simply feed one another’s fire, and build each other up, in an unwinnable, atrocious war.
Being white, and brought up in New Hampshire, I never saw race relations in any forum other than one-on-one. There were three black kids in my high school, and I knew all three. I was friends with two, close friends with one. None of us thought anything of it. Nobody in my school ever got beat up for being white, black, Chinese, or Hispanic (I am not sure there were any Hispanics at my school when I was in high school). Our divisions were more of the jock/nerd variety (I was definitely not a jock).
A black kid growing up in the south, who is now about my age, would have a completely different perspective on race relations in America. Going through desegregation and prejudice as a kid deeply affects who people are as adults. Motivations that I would never even consider become the norm for people who have witnessed first-hand, or been subject to, overt discrimination. Color means something, sometimes it means everything to such people. From my perspective, they may be wrong, but should I condemn and marginalize them for believing it?
For those who see it that way, Michael Brown’s death signifies America’s tilt against the black man. It conjures up images of the cross and the lynching tree, when bands of white men ritually hung a black to instill fear and terror, and hold on to the power which was stripped from them by the 13th Amendment, which abolishes slavery. It is not ancient history. The last two holdouts to ratify, Kentucky and Mississippi, waited until 1976 and 1995, respectively. Mississippi didn’t officially certify the result until February 7, 2013. In 2013, we were still hearing about a state which had rejected the 13th Amendment—this is an intolerable insult for many.
American judges talk about the Constitution as a “living document” with rights and “penumbras” and “emanations”. Sometimes our pursuit of fairness creates tilts which could be far worse than the perceived unfairness they seek to redress. The U.S. Supreme Court is particularly guilty of this.
One of the most controversial tilts is the Brandenburg test. This test prohibits the government from restraining advocacy of criminal activities, unless two conditions are satisfied: (1) the advocacy is “directed to inciting or producing imminent lawless action,” and (2) the advocacy is also “likely to incite or produce such action.” Since 1969, the bar is set very high for the the government; they practically have to catch people in the very moment of committing the violent act before it can be proscribed. This decision overturned state laws which made groups like the KKK illegal.
Can we explore the question: which is worse, outlawing groups whose very existence is an insult to America, and whose purpose is clearly to subjugate and destroy others, or allow them to exist and in fact protect their existence because it’s “free speech”?
For a long time, this was a taboo question for me. I said, “I may disagree with what you say, but I’ll defend with my life your right to say it.” It’s not really true though. I won’t defend your right to say “all Jews should go to the ovens”, at least not if you mean to carry it out. And that doesn’t mean you can carry it out. It means you are publicly declaring your intention to attract others to your cause, and they might be able to carry it out.
Groups like the KKK and Black Panthers exist for no good purpose, at least no purpose that deserves a platform, no matter what test is applied. You might say that the power of the government to suppress free speech is too dangerous to grant, but Congress has always had that power. Not all speech is protected, and it never was. The Alien and Sedition Acts date back to 1798. You can’t advocate the overthrow of the republic, or aid and abet its enemies.
Then again, who’s to say that the government would use the authority of “prior restraint” wisely?
They haven’t always. The Alien Enemies Act enabled the Roosevelt administration to intern thousands of Japanese Americans. But have we swung too far the other way?
I think, perhaps we have. Congress has the authority to act, and the President to sign, legislation to ban the KKK as a seditious group. It in fact could ban any group based on racial hatred, making their very existence illegal. RICO does this for criminal organizations, who can be prosecuted or even sued in civil court if found to be “racketeering-influenced”. Why not make that protection extend to race? The Supreme Court would certainly have to decide this as a case, but it’s not more unconstitutional than what the EPA has already tried.
We should at least ask the question. Why should we allow public insults to exist, which further inflame and divide us, when we could show those who feel marginalized that we’re at least listening? Because for some, the cross and the lynching tree are only too real.