The First Amendment: A Right Against Bared Arms

The past weekend’s white nationalist rally in Charlottesville meant déjà vu all over again regarding the status of “hate speech” under the First Amendment. As a positivist matter this debate is a nonsense: uncountable cases made it quite clear over the past hundred years that bigots are entitled to speak their mind. “Hate speech” is as valid a legal concept as a notice of impeachment issued by the Marshal of the Supreme Court. But the normative argument requires a few more words said in its derision. Perhaps the bluntest exemplar comes this week from The Week, in the name of a certain Matthew Walther.

Walther disdains “grandiose blanket defenses of freedom of speech that extend to bigots, frauds, pornographers, genocidal enthusiasts, propagators of terrorism and sedition, and kooks emotionally invested in nonsense and villainy.” Such foolishness is under fire now, and a jolly good thing indeed, in his view. To news that a certain digital septic tank had been denied web hosting by GoDaddy and Google, Walther cheers: “I for one am happy that the Daily Stormer is gone. People who agree with me need to ask themselves why they would have found it upsetting if the Department of Justice had shut it down.”

Well, then, the challenge is laid.

As his authority, Walther cites John Milton, whose apologia for free inquiry, Areopagitica, includes a striking exception: Catholics and other non-protestants. For what it’s worth, Locke (who Walther does not cite) says much the same about Atheists in his Letter Concerning Toleration. Walther refuses us the right to grade this on a historical curve:

Brushing this off as mere prejudice or oversight would be a gross anachronism. Milton makes this qualification precisely because Catholicism and atheism are incompatible with the kind of society for which he is arguing. Giving Catholics or atheists a hearing would be an act of violence tearing away at the foundations of the Christian commonwealth he hoped to establish….All societies have certain organizing principles. Freedom of speech is not a first-order good; it exists only to facilitate the flourishing of the society along the lines established by those principles.

Note first how bizarre it is to defend a ban on ethno-nationalists by citation to an argument for ethno-nationalism. Milton sought to build a protestant nation, and therefore it is right and just, per Walthers, that no papists need apply. In this, Milton’s view is indistinguishable from Richard Spencer’s – if we are to ban these ideas, Walther will have to start with his own column.


Note second Walther’s assumption that we agree on certain organizing principles. Oh if it were so. Yes, more or less everyone not present in Emancipation Square on Saturday agrees that white supremacy is an evil unrivaled in our history, but a brief test of the intellectual dipstick shows that agreement to be quite shallow. One popular meme going around in the wake of this past weekend graphs various kinds of “overt” and “covert” white supremacy. The overt ones are straight forward enough – lynching and burning crosses – but the “covert” ranges far beyond the realm of employment and housing discrimination to topics like “Euro-centric curricul[a]” and “Bootstrap Theory.” Are Chaucer and Flaubert a form of white supremacy? Is Horatio Alger? (Obviously, we’ve already established, Milton is.) I will leave the Canon Wars to others for the moment, but to claim our societal principles are well organized in the age of micro-aggressions and “white privilege” is to display the engagement of Rip Van Winkle.

What Mr. Walther fails to grasp is that Law is not about principles, it is about power: it is ultimately a system for allotting power to entities capable of enforcing principles by force of arms. We spend much time here at LDB arguing over the “correct” answer to legal questions. And we are correct to do so. But someone once explained to me that the statute is not, ultimately, the law. Rather, ultimately, the constable is the law. And so we must recognize that for all out best efforts we can not create a perfect list of rules, we can only create the list that we are willing to provide our rulers. Walther’s confusion may be our fault, we free speech types, for we talk more often about the former than the latter. John Stuart Mill was right, of course, regarding the inherent merit of free inquiry itself. But that is somewhat beside the point. The First Amendment is not a quixotic effort to turn America into Plato’s Academy, it is a matter of realpolitik.

I too am glad the Daily Stormer is gone – or, to be more precise, I prefer a world without the excretions of that particular bilge pump — but I am going to dodge the questions as to the manner in which this was achieved, likewise as to whether Google’s exercise of its market power in this manner is or is not desirable. It is enough, to answer Walther’s interrogatory, to say that it is Google’s right to do so, and it would be gravely different if the same occurred at the demand of the federal government.

Per Max Weber, the sovereign is best defined as the holder of the monopoly on violence. It alone can imprison, or even kill, those who violate its edicts. Google can jigger its search results to reflect its biases. WordPress could shut down this blog tomorrow, denying me this platform for my brain drippings. But Bing’s search function works well enough, and Squarespace offers blog hosting as well. Even if one company has sufficient market power to deny me completely a forum for my views, there is one thing Google cannot do: It cannot send men with guns to my house or drag me from my home and lock me in a cage.


We entrust the state with this horrifying power for a number of reasons, some of them good, and I will not here rehash five hundred years of political philosophy. Suffice it to say that it was an “organizing principle” of the founding generation that the monopoly must be strictly constrained. The entire exercise of constitution writing is thus an endeavor in articulating the things for which guns may be drawn.

We are not destined to be governed by angels (no matter how our rulers decorate their ceilings). We must therefore decide which authorities can be entrusted to fallen man. As Katherine Mangu Ward points out, those who view the current regime as an ally of bigotry should be most troubled by calls to let the government choose who marches. Law is not, at bottom, a discrete list of those things that are good and bad, it is a set of tools we entrust to those in power. As a finer jurist than I put it, such power, once granted, “lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” The First Amendment is a right against the bearing of arms.

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