The Jury Talks Back


Piers Morgan And The “Nazi Exception” To The First Amendment

Filed under: Uncategorized — Patterico @ 8:00 am

Yesterday I took on Matthew Walther’s inane claim that the government should censor Nazis. Today I address Piers Morgan’s similar contention that the First Amendment should not be used to protect Nazis. Responding to someone who said Morgan didn’t understand the purpose of the First Amendment, Morgan replied:

Piers Morgan saying he understands the purpose of the First Amendment reminds me of Jerry Seinfeld’s response to the car rental agent who told him that she didn’t have his reserved car — but that she knows what a reservation is. Seinfeld looked at her and said: “I don’t think you do!” You say you understand the purpose of the First Amendment, Piers Morgan? I don’t think you do!

Charles C.W. Cooke has already addressed this lunacy admirably at National Review. Let me chime in with my own less polished thoughts, after first quoting Cooke:

Morgan is echoing an idea that has been advanced repeatedly in the last couple of days: To wit, that there is something particular about Nazism that makes it ineligible for protection under the Bill of Rights. This is flat-out wrong. And, more than that, it’s dangerous. Abhorrent and ugly as they invariably are, there simply is no exception to the First Amendment that exempts Nazis, white supremacists, KKK members, Soviet apologists, or anyone else who harbors disgraceful or illiberal views. As the courts have made abundantly clear, the rules are the same for ghastly little plonkers such as Richard Spencer as they are for William Shakespeare. If that weren’t true, the First Amendment would be pointless.

This is not a “controversial” statement. It is not an “interesting view.” It is not a contrarian contribution to an intractable “grey area.” It is a fact. There are a handful of limits to free speech in the United States, and all of them are exceptions of form rather than of viewpoint.

. . . .

“I believe in free speech, but” or “I just don’t think this is a free speech issue” — both popular lines at the moment — simply will not cut it as arguments. On the contrary. In reality, all that the “but” and the “I just don’t think” mean is that the speaker hopes to exempt certain people because he doesn’t like them. But one can no more get away from one’s inconsistencies by saying “it’s not a speech issue to me” than one can get away from the charge that one is unreliable on due process insisting in certain cases, “well, that’s not a due process issue to me.” This is a free speech issue. Those who wish it weren’t just trying to have it both ways — to argue bluntly for censorship, and then to pretend that they aren’t.

The point I made yesterday regarding this issue is that, if you’re going to have a principle that says the government can ban speech, you have to ask one very important question: who gets to decide what speech is banned? And the answer is going to be “government officials.” And government officials will view the question through the lens of their own world views and self-interest rather than the common good. That alone should be enough to give you pause.

Are you comfortable with giving the IRS the power to audit people based on their political viewpoint? If the answer to that question is “no,” you should feel even more uneasy about giving government the power to ban wrongthink, or to imprison people whose views they don’t like.

It’s actually distressing to me that I need to say any of this. Rejection of content-based censorship by the government should be such a basic part of every American’s education that blog posts like this are completely unnecessary. But when prominent people keep saying such a silly view, it has to be refuted.

One irony in all of this is that the Nazis themselves suppressed speech they didn’t like as a way to stamp out any possible opposition to their views. Those who have studied history might remember that the Nazis made long lists of unacceptable books. Then they raided libraries and bookstores, seized those books, and held book burnings. Yet Piers Morgan would apparently be happy to see the government burn books, as long as the books arguably support Nazi views. How could he object to such book burnings, given his recent statements? Does this not show the insanity of his position?

This goes back to my question about who decides what speech can be banned. It might sound benign to say: hey, Nazi thought is bad, so obviously it should be banned. But when the Nazis were in power, they didn’t think Nazi thought was the problem. They thought the Jews were the problem. So instead of banning books by the likes of, say, Richard Spencer, they banned books by the likes of Albert Einstein.

Oppressive regimes throughout history have always tried to control citizens’ thoughts by banning speech. Tools like Piers Morgan who advocate for content-based government censorship are actually advocating, in part, the return of totalitarianism. No matter how attractive it might sound to carve out an “exception” to the First Amendment for obviously hateful speech like pro-Nazi propaganda, such efforts are illegal, morally wrong, and should be rejected in the interest of freedom.

[Cross-posted at RedState.]


  1. I can’t believe we even need this discussion, but we obviously do. It’s exasperating.

    Comment by DRJ — 8/17/2017 @ 2:07 pm

  2. Check out that guy Matthew Walther now on Twitter doing his best to mock me and faceplanting again and again.

    Comment by Patterico — 8/17/2017 @ 6:59 pm

  3. @Patterico,

    He will probably be appealing to authority soon on this argument.ACLU says there are limits to free speech. The ACLU has finally folded to the heckler veto. I for one feel bad about this because they were stalwarts in defense of some of our core liberties, even when I disagreed with the logic or reason behind their disagreements.

    Comment by Charles — 8/17/2017 @ 9:26 pm

  4. Walther is a Nazi name and should be banned. The Walther company was a major supplier of armaments to the Nazis in WWII including Hitler’s own personal pistol. We do not need such reminders of Nazism as people actually calling themselves Walther. It is offensive.

    Comment by nk — 8/18/2017 @ 5:46 am

  5. The ACLU is not monolithic. What the Chinatown chapter does is not necessarily what the Chicago chapter will do.

    Comment by nk — 8/18/2017 @ 6:02 am

  6. @NK,

    Except that the National organization has now come down and said that some speech is not free and not worthy of defense. This will quickly snowball because who defines what a “hate group” can be? The SPLC? The ACLU? The FBI? We already know what has happened when the SPLC with their ideology has done in that designation. We already know that most of the left leaning ideological folks view religion of any stripe as hate groups (and yes they view Islamic Culture as a hate group, but since it is in the minority right now it is given a pass), the same is true of other interests and hobbies for some as gun ownership, and the way that ethnicity pride is spun how soon till some of the Italian and Irish or even Nordic social clubs around the nation are viewed as hate groups? The hecklers have won and we are in for one hell of a ride, it probably won’t get better.

    Comment by Charles — 8/18/2017 @ 9:46 am

  7. A very recent decision (June 19, 2017) of the Supreme Court says, in part:

    A fundamental principle of the First Amendment is thatall persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that astreet or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989). Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

    While in the past there may have been difficulty in identifying the most important places (in a spatial sense)for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet”in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997), and social media in particular.Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According tosources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.

    Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno, supra, at 870. On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representativesand otherwise engage with them in a direct manner.Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16. In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” Reno, supra, at 870 (internal quotation marks omitted).

    (5-3 as to this section, 8-0 as to outcome)

    Comment by Kevin M — 8/18/2017 @ 4:06 pm

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