On Wednesday, April 27, 1977, the Illinois affiliate of the American Civil Liberties Union received an unsolicited call from a man named Frank Collin. Deceptively unassuming in voice and manner, Collin was president of the National Socialist Party of America, a successor to the National Socialist White People’s Party led by the infamous George Lincoln Rockwell. On the phone with an ACLU staff attorney named David Goldberger, Collin complained that his group had been served with a lawsuit to prevent its planned demonstration in the Chicago suburb of Skokie. He asked the ACLU’s Illinois office to represent him and his band of neo-Nazis in court and thereby oppose what he regarded as infringement of their First Amendment rights to freedom of speech and assembly.
Collin’s request, and the ACLU’s decision to accept the case, provoked months of litigation and created a controversy still taught to American schoolchildren today. For many American Jews, the ACLU’s decision to represent the neo-Nazis was an act of betrayal. Collin had chosen Skokie as a location for the demonstration specifically because it had a large Jewish population, including many Holocaust survivors, that he wanted to intimidate. Under these circumstances, the Jewish Goldberger’s appearance on behalf of Collin seemed a grotesque sacrifice of communal loyalty to abstract principle. (The grotesque became utterly farcical when it became public that Collin’s father was not merely a German-born Jew but also a survivor of Dachau).
Despite the somewhat bizarre circumstances of the controversy, the legal question was sufficiently important to interest the Supreme Court. In a 5-4 ruling, the majority reversed lower-court decisions that had upheld restrictions on the neo-Nazi march. Strikingly, the Court proclaimed that displaying the swastika was a form of expression protected by the Constitution, despite the distress and fear it was likely to arouse, particularly among Holocaust survivors. Although the term was not then in use, the decision can be read as extending constitutional protection to what’s now called hate speech.
Thus “Skokie” became both a symbol of the lengths Americans would go to protect the value of free speech, and a new synecdoche for a lingering question about the stability of liberalism. For civil libertarians, the incident was proof of the maxim, frequently and not quite accurately attributed to Voltaire, that “I disapprove of what you say, but I will defend to the death your right to say it.” Since just about everyone disapproved of their views, defending the freedom of Nazis was the ultimate test of moral and political consistency, and therefore something to be proud of.
Others argued that, given the many cases still within living memory in which fascists or Communists had taken over liberal regimes from the inside, it was dangerous and indeed perhaps suicidal to defend the freedom of professed enemies of freedom. In this they followed the influential political philosopher Karl Popper, who, in his 1945 book The Open Society and its Enemies, described this dilemma as the “paradox of toleration.” “If we extend unlimited tolerance even to those who are intolerant,” Popper wrote, “if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.” The Nazi hunter Simon Wiesenthal put it more coarsely. “I have been told you are a Jewish lawyer,” he said at the time of Skokie to one of the ACLU’s Jewish lawyers. “I don’t know whether you are young or old, but I can tell you one thing, and you can write it down and hang it up over your bed; a Jew may be stupid, but it’s not obligatory.”
Tolerance, the limits of free speech, the role of Jews in defending and questioning civil liberties—these are questions that a new documentary, Mighty Ira, released late last year and streaming online, takes up afresh. The film is a tribute to the man who assumed leadership of the national ACLU in the midst of the Skokie debate. From 1978 until he retired in 2001, Ira Glasser served as the public face of liberal tolerance, in the process giving civil libertarianism a distinctively Jewish appearance, as the film makes clear. Mighty Ira’s timing is quite welcome. It arrives at a moment when the country is facing similar questions—questions that many of its inhabitants are answering quite differently, for both the political theory Glasser represented and its association with a particular element of American Jewry are now in retreat. The Skokie matter is one of the landmark free-speech cases of the 20th century. What does it look like from the perspective of the 21st?
I. The Distant World of 1977
Mighty Ira is largely a period piece, and the period it depicts feels suddenly far away in a way it might not have a mere decade ago. Using Skokie as a narrative hinge, the film alludes to disputes of the time involving pornography, flag desecration, and other expressive activities. Looking backward, the bitterness with which those issues were contested seems quaint. Amazon sells the unexpurgated works of Hitler, although no longer those of Dr. Seuss. Sexual content that would once have been considered vastly depraved is now unexceptional.
Even more than a moral time capsule, Mighty Ira is a portrait of a vanishing milieu. Glasser, born at Brooklyn Jewish Hospital in 1938, is a paradigmatic example of what might be called “Woody Allen Jews”: children of Ashkenazi immigrants who grew up during World War II and enjoyed extraordinary upward mobility in the following decades. In Annie Hall, released in the same year as the Skokie case, Allen affectionately complains: “Don’t you see the rest of the country looks upon New York like we’re left-wing, Communist, Jewish, homosexual pornographers? I think of us that way sometimes and I live here.”
Glasser’s animated manner and outer-borough accent announce him as a member of this generation. Like Allen, Philip Roth, and other contemporary icons of Jewish-Americanism, he presents himself as an insider-outsider—proud of his success and confident of his right to participate in national life, but instinctively suspicious of conformity, tradition, and coercion. The result was a political disposition very different from older conceptions of Jewish politics, which prioritized community maintenance in the Diaspora or the Zionist pursuit of a nation-state. Rather than emphasizing shared identity and communal interest, it was attracted to general principles that would allow individuals to pursue their happiness as they saw fit.
The opening scene of Mighty Ira poignantly demonstrates how distant the world that formed Glasser has moved from present conditions. In it, Glasser makes a pilgrimage to the housing complex built on the site of Ebbets Field, where his boyhood hero Jackie Robinson broke baseball’s color line and brought a sense of progress to what was then an unfashionable, socially conservative borough. While recounting his admiration for Robinson, Glasser encounters two little girls who live in the complex and are surprised to learn that a ballpark once stood there. You can’t go home again, especially if you’re a Dodgers fan.
Glasser’s professional heyday seems distant, too. Among the most affecting portions of Mighty Ira document Glasser’s improbable friendship with William F. Buckley, whom he conducted on the blighted subway of the 1980s to his first and perhaps only major-league baseball game (with the Mets substituting for the Dodgers). A warm personal relationship did not prevent Glasser and Buckley from facing each other as opponents in a series of televised chats and formal debates. The fluency and seriousness of those exchanges makes a depressing contrast to the stupidity and triviality of cable news, now being superseded by even stupider and more trivial social media.
Above all, Mighty Ira depicts a very different distribution of power. Not all the ACLU’s work was popular with liberals; in addition to the Skokie controversy, the organization filed a brief supporting Oliver North’s refusal to testify to Congress about his role in the Iran-Contra affair. Nevertheless, the ACLU was broadly aligned with the struggles of dissenters against conformists, minorities against majorities, individuals against society. In the 1988 presidential campaign, George H.W. Bush emphasized that his rival Michael Dukakis was a “card-carrying member of the ACLU.” Quaint now too, this was then considered a powerful attack that placed Dukakis outside the mainstream of American society.
It was a mainstream that looked and acted different than Glasser, not to mention the mainstream of today. The year after he assumed leadership of the ACLU, a group of mostly evangelical and fundamentalist Protestants led by Jerry Falwell proclaimed themselves the “Moral Majority.” The phrase was optimistic but far from absurd. Through the 1980s, conservatives made serious efforts to restrict pornography, explicit sex education, flag burning, and even ostensibly occult books. And not just conservatives. In the same period, Tipper Gore became prominent as the leader of a movement to place warning labels on “porn rock.”
Now, of course, the current of disapproval runs in the opposite direction, toward ideas that are seen as encroaching on the freedom to define the terms of one’s own existence. In matters of sex and gender, the erstwhile moral majority is reduced to begging for exemptions from a sweeping regime of enforced non-discrimination. The recent Supreme Court decision in Bostock v. Clayton County, which affirms gender identity as a protected category under the 1965 Civil Rights Act, threatens existing defenses for religious association and practice. Meanwhile, the Equality Act now before the U.S. Senate promises to limit those defenses to the very thresholds of houses of worship.
The landscape of racial politics and speech is also much changed. With a fervor not been seen since the 1960s, major American institutions now proclaim a comprehensive agenda of anti-racism. In addition to affirmative-action goals that have attracted controversy for decades, these efforts involve heightened scrutiny of corporate communications and branding, workplace behavior, and sometimes extracurricular expression. Standards for racist speech and conduct are arbitrary and selectively enforced, so that nobody knows where the lines of moral and political etiquette lie, even as they live in constant fear of overstepping them.
In some ways, these conditions merely recapitulate Popper’s paradox of tolerance in a new form. Almost everyone agrees that some forms of speech and expression are unacceptable in decent society or responsible institutions; we merely continue to dispute, as we have always done, exactly what those are. In other ways, however, that abstract agreement obscures how widely the contours of the free-speech debate have changed. For Popper and other mid-century liberals, the criterion of tolerance was whether speech posed a threat to the continued existence of liberal democracy. Writing in the shadow of the Second World War, they worried about radically anti-liberal movements seizing political power. That is why the Skokie case was so challenging: although Frank Collin and his band of losers had no prospect whatsoever of acquiring legal authority, they were in principle a revolutionary movement.
Now, instead of emphasizing threats to the constitutional order, most critics of expressive freedoms emphasize the ostensible harm caused by sexist, racist, or other putatively intolerant speech. Mid-century thinkers like Popper thought censorship might be sometimes justified to ensure the continuation of liberal institutions. Today’s progressives are more concerned with protecting subjective identities and feelings. The storming of the Capitol this past January 6 revived fears of an anti-democratic coup or insurrection. In general, though, the risks of the explicit overthrow of constitutional government have receded, along with memory of the totalitarian regimes of the 20th century.
These dilemmas lead deep into the contradictions of philosophical liberalism. As an institution-builder and fundraiser, Glasser was successful in navigating the political and social conditions of a different and, as we’ve seen, almost vanished America. But we must look beyond the assumptions that structured his career to revisit the lessons of Skokie.
II. The Lineage of Liberalism
Unlike other prominent defenders of free expression then and now, Glasser was not a lawyer, constitutional scholar, or political philosopher. Trained as a mathematician, he edited a political magazine before beginning his activist career. This background helped him make a case for civil liberties that resonated with the broader public. Rather than a legal or theoretical innovator, he was a successful evangelist for two ideas with deep roots in the liberal tradition and in American politics.
The first idea is that a government with the authority to suppress forms of expression one doesn’t like is also a government with the ability to suppress those one does like. Coercive powers originally deployed against pornography, for example, could be redirected against unpopular economic ideas. If one could be assured that one’s preferences would always be shared by those in power, this risk would be merely hypothetical. But the chance of turnabout is high in a democracy, Glasser pointed out, so, when power regularly changes hands between parties and factions, it is safer to withhold authority altogether than to hope it will be always well used.
This argument is a version of what the 20th-century political theorist Judith Shklar called “the liberalism of fear.” It is an essentially prudential case for limiting any government’s ability to coerce its citizens. Going by this view, the goal of a political community is not to achieve an ostensibly common good that many citizens will inevitably reject. It is, rather, to avoid the summum malum of institutionalized cruelty, that worst of all evils.
The liberalism of fear can be traced back to the efforts of 17th-century philosophers, theologians, and statesmen to avoid the wars of religion that devastated early modern Europe. More recently, its advocates have used the nightmare of totalitarianism to dramatize the risks of an over-mighty state. Drawing on a distinction suggested by Ralph Waldo Emerson, Shklar associated the liberalism of fear with what she called “the party of memory”—that is, those tormented by recollection of the suffering that human beings can inflict on each other. Because it is skeptical of utopian projects and partly defined by past experience, the liberalism of fear, Shklar concluded, has a conservative quality.
As Emerson recognized, the challenge facing the party of memory in convincing the wider public to support free speech is that Americans are not a temperamentally conservative or particularly memory-bound people. Sure, some of our greatest statesmen—above all, James Madison—were haunted by the burdens of history and the limits of politics. But religious revivals, Western expansion, waves of immigration, and industrialization, among other factors, eroded these constraints, so that, at least since the Civil War, the party of hope has held the upper hand in American politics.
To attract broad support, therefore, American civil libertarianism needed a positive, affirmative component. It found that element in theories of progress associated with optimistic liberals such as the philosophers John Stuart Mill and John Dewey (a co-founder of the ACLU). According to these theories, relatively unrestrained speech, expression, and association were not just consequences of prudentially limited government, they were also the basis for continuing improvements in knowledge, morality, and politics. In other words, the civil-liberties movement tried to appeal simultaneously to the party of memory and the party of hope. To adherents of the former, it emphasized the domestic experiences of McCarthyism and the post-World War I “red scare,” as well as examples of foreign tyranny. To adherents of the latter, it offered an optimistic vision of moral and social progress stimulated by free expression and debate.
An advocate rather than a scholar, Glasser did not necessarily fixate on the lineage of his arguments for free speech. Still, a liberalism of hope was the basis of his response to the Skokie crisis. Neo-Nazis, Communists, or other anti-liberal elements might well use freedom to express bad ideas, he admitted. But the best way to combat their influence was not to shut them down but to refute them publicly. In this way, public confrontation with intolerance would not only expose particular challenges as irrational nonsense, but also strengthen the liberal immune system against future challenges.
Glasser’s strategy for resolving the paradox of toleration, then, was not to limit speech but to restrain deeds. Endorsing racial or religious conflict should be permitted; enacting it should be rigorously punished. And where Shklar, herself a refugee from the Third Reich, portrayed the struggle against cruelty as a Sisyphean exercise requiring constant effort, Glasser was a happy warrior. An idealistic product of booming mid-century America, his liberalism was essentially confident of future success, and his secular, Jewish, lower-middle-class background was more important to that optimism than any formal philosophy of history. Even when they flirted with Marxism, his generation and class of American Jews displayed intense cultural patriotism. The task of the left, as they saw it, was not to replace America. It was to help America become more fully itself by exposing and combating religious bigotry, racism, and economic exploitation.
In later years, that sense of moral purpose was partly eclipsed by the New Left. Though they joined together in the campus Free Speech movement and later opposition to the Vietnam War, liberals of Glasser’s type and the avatars of the various “liberation” movements held fundamentally different views of the American promise. For liberals, freedom meant the removal of obstacles that prevented members of political, religious, and cultural minorities from participating fully in American life. For radicals, it meant transforming a form of life that they saw as not just contingently but essentially implicated in oppression.
The radical critique of liberal toleration received its most famous expression in the philosopher Herbert Marcuse’s 1965 essay “Repressive Toleration.” Noting that John Stuart Mill himself proposed that freedom of speech should be allowed only to communities at a particular level of historical development, Marcuse argued that suppression of authoritarian or racist speech might be necessary to ensure that liberalism accomplished its own goal of equal freedom for all members of society. Where American liberals were optimistic that this progress would occur more or less automatically, the German-born Marcuse noted that the Nazis had made enthusiastic use of freedom of speech until it was no longer convenient for them and they abolished it. Appealing to memories of this European disaster, Marcuse suggested that history—even in America—pointed toward the necessity of constraints on movements opposed to freedom and justice, as he understood them, rather than encouraging the limitation of government power.
The essay was badly received by many scholars of Glasser’s generation, like the sociologist Nathan Glazer. But Marcuse’s critique of civil libertarianism had an important influence on the American left, in a way that closely paralleled the influence of Karl Marx’s own critique of liberalism. In different ways, black nationalists, feminists, gay activists, and other radicals embraced the conclusion that the so-called marketplace of ideas is biased in favor of the most familiar and comforting products. Rather than competing in a rigged game, they proposed to change the rules in their own favor. The lines of reception are longer and more twisted than the conspiratorial accounts of “cultural Marxism” now popular in conservative circles suggest. Nevertheless, the origins of the idea that freedom of speech itself is bound up with inherited privilege and even a form of racial supremacy lie in the kind of thinking Marcuse represents. The project of liberation beyond liberalism is among the most urgent threats to free speech today.
III. Public Speech and Private Speech
Under Glasser’s guidance, the ACLU focused primarily on combating official restrictions of the kind exemplified by 20th-century totalitarianism, arguing that government is not entitled to favor certain ideas or impose penalties for questioning them. Partly due to the ACLU’s successes in Skokie and elsewhere, such efforts are now rare. The concept of free speech in American jurisprudence once revolved around the absence of what’s called prior restraint. The law, that is, could not ban broad categories of speech before the fact, but particular instances of speech could be subject to civil or even criminal penalty after it occurred. That legal situation has changed; American law now bars nearly all legal penalties on speech after the fact too. These sweeping protections make the U.S. a global outlier. Since the Second World War, many European liberal democracies have confronted their own burden of memory by imposing various restrictions on Holocaust denial, arguments against constitutional authority, and the sort of expressions of bigotry that the Supreme Court protected in Skokie.
The result is that Americans don’t have to worry much about outright bans on unpopular words or ideas. The battleground instead now lies in the authority of nominally private parties, on our new quasi-public, legally private streets like Facebook and Twitter—which means that the burden of enforcement has largely shifted from government to private agencies. Human-resources offices in corporations have been made responsible for developing intricate codes of conduct for employees. University offices of diversity and inclusion are charged not only with avoiding violations of civil-rights regulations but also with ensuring that all students feel “safe” at all times. Content moderators on social-media platforms enforce terms of service that prohibit not only specific threats or harassment but also general expressions of hatred or discrimination. Users of those platforms then make special effort to report others and get them fired. Americans may have the constitutional right to oppose same-sex marriage, they claim, but no one who expresses such views is legally entitled to be employed, promoted, or publicly celebrated by private actors. (In combination with tight job markets, the ability to publicize ostensibly disqualifying speech has transformed high-prestige, low-compensation fields like journalism into cannibalistic blood sports. When the best way to advance is to remove a rival from competition, there is every incentive to use accusations of intolerance as a career strategy. Intemperate remarks that might once have been uttered in private and quickly forgotten are now permanently and universally accessible. That provides plenty of ammunition for takedown artists, whether their motives are ideological, instrumental, or a mixture of both.)
Though still poorly understood, the tension between legal freedom and quasi-private constraint is at the core of our contemporary free-speech debates. It was on display in the March controversy about the beloved children’s book author Dr. Seuss. On the advice of an anonymous panel of anti-racism experts, the foundation that publishes Seuss’s work chose to allow six titles that included ostensibly offensive material to pass out of print. In itself, the decision to cease publication was not very significant and entirely with the legal authority of copyright owners. But the foundation’s public denunciation of its own intellectual property as “hurtful and wrong” provided a signal to other organizations to revise their own policies with regard to Seuss’s work—organizations that now make up a significant portion of American public life. Within days, eBay announced that it would not permit existing copies of the six books to be exchanged on its platform. This then redounded onto public institutions, which after all aren’t immune from public pressure: several public libraries quickly announced that they would remove them from shelves, ostensibly in order to review whether and how to offer them to patrons.
None of these actions match the familiar vision of incipient tyranny. Uncoordinated publishing and marketing decisions may not qualify as censorship under a strict definition; rather than laying down the law, they merely make it difficult for those who express unpopular opinions to participate in essentially educational, economic, or civic activities. Their practical consequence, though, is perhaps not so different: to make it as difficult as possible for people who want the books to acquire or exchange them. A society in which the police take no interest in speech or expression may be formally free. But is practically open? Freedom of speech is, after all, both a legal right and a moral value. The former rests on the latter; but too often people are eager to argue that satisfying the legal concerns is the only responsibility they have. “There are so many other great books that you can read to your [child],” wrote the books editor of the Minneapolis Star-Tribune. “Let’s let these six go.”
Rather than emerging from genuine public outcry, moreover, opposition to the Seuss books apparently derived from activist scholars who hope to remake education policy in pursuit of a sweeping vision of social justice. They are employing a strategy for leveraging institutional power in favor of their political goals, not merely expressing personal disapproval of works they consider retrograde. In that sense, the controversy replays the contradictions between Glasser’s hopeful liberalism and the New Left-style liberationist radicalism that were already evident half a century ago.
There is another, deeper tension at work, too. The middle of the 20th century was a period of efflorescence that dispelled lingering doubts about American inferiority. In science, scholarship, music, visual art, and other fields, American innovations set the standard for the rest of the world. These achievements became important part of the case for protections of individual freedom. Civil liberty, it was argued, was the key ingredient for the cultural productivity that distinguished America not only from the stifling conformity of communism, but also from the stagnant hierarchies that survived among our traditional European teachers.
That dynamic quality is no longer evident. Although some new works provoke controversy—especially in heavily politicized fields such as young-adult literature—our most passionate debates about censorship revolve around the status of old classics, many of them, like the works of Dr. Seuss, products of the mid-century explosion. Indeed, one reason that the foundation that owns the copyright on Seuss’s works is sensitive to activist pressure is that it wants to continue to pursue lucrative media projects based on its existing intellectual property. The value of that property is enhanced by the absence of new and equally appealing competitors.
More generally, American culture seems to be returning to its historical norm after a remarkable period of vitality. For most of the 20th century, it was easy to laugh at Alexis de Tocqueville’s dour pronouncement that there was no freedom of thought or expression in American democracy. Pride in American cultural vitality was perhaps especially characteristic of Glasser’s generation of Jewish American liberals. Who could believe that the culture that produced Bellow and Roth, Gershwin and Dylan, Rothko and Spielberg was repressed or stagnant?
It is harder to dismiss Tocqueville’s assessment today. With its inquisitorial moralism, intolerance for genuine disagreement, and periodic bouts of mob violence, the American present resembles our pre-60s past more closely than the free-wheeling interlude Mighty Ira depicts. Glasser’s arguments for free speech were tailored to a creative, dynamic society. But optimism does not thrive under conditions of decadence.
IV. From ACLU to FIRE
The shifting political and cultural terrain is evident in the institutional background of Mighty Ira itself. Ira Glasser served the ACLU in various capacities for more than thirty years, but, as Jamie Kirchick reported recently, Glasser’s legacy there is now threatened. At least since the Obama administration, the ACLU has gravitated toward a vision of social justice that is at odds with the organization’s traditional concern with free speech and due process. In this vein, an ACLU staff attorney recently proclaimed that “Stopping the circulation of [an ostensibly anti-transgender] book and these ideas is 100-percent a hill I will die on.”
It is not surprising, then, that the film was produced by a different organization, the Foundation for Individual Rights in Education (FIRE) founded in 1999. Intended to focus on college speech codes and exist for only a decade, FIRE has become something of a counterweight to erstwhile civil-liberties groups now more closely allied with the cultural left. Not coincidentally, FIRE is often characterized as a right-wing organization. That’s not strictly accurate; in its legal filings and public materials, FIRE promotes impeccably old-fashioned civil libertarianism. But it is not entirely misleading as an assessment of the balance of political forces.
This shift in the political valence of free speech was evident during the 2020 presidential campaign and especially in connection with the efforts of former President Trump to overturn the election result. As social-media platforms cracked down on what they characterized as conspiracy theories, Trump’s supporters claimed that their views were being illegitimately if not illegally suppressed, an argument that gained popularity after Trump himself was banned permanently from Twitter. In the Senate impeachment trial that came in the wake of the Capitol riots, Trump’s lawyers even argued that the claim that he incited the rioters and should be punished for it was a violation of the First Amendment.
As a legal position, this doesn’t hold water. If Trump were being prosecuted for criminal incitement, his lawyers would have a point. In an impeachment proceeding, however, the First Amendment was a red herring; the constitutional responsibilities of the president impose a higher standard for conduct than do the constitutional rights of citizens. In a broader perspective, though, it’s hard to deny that there was something troubling about social-media platforms like Twitter and Facebook shutting down Trump’s accounts. Representatives of the social-media giants maintain that they have both a legal right to moderate the content they host and a civic responsibility to combat “disinformation.” But their central role in modern civic discourse makes them more like government officials deciding who can speak in public spaces than like the editors of newspapers deciding whom or what to print.
Recent developments lead some defenders of free speech to propose a more assertive role for government than the old civil-liberties movement would have countenanced. Rather than merely removing legal obstacles to speech, Congress and regulators could, these defenders argue, require social-media platforms to allow any form of expression permitted by the First Amendment. In this way, the Internet would be transformed into the genuine public sphere that its pioneers imagined.
The problem is that social media cannot function without some form of moderation. Wholly unregulated forums inevitably degenerate in toxic personality struggles or (sometimes and) sources of pornography. Rather than promoting a wider range of discussion, policies requiring that platforms allow all legal speech would make them impossible to use for any salutary purpose. Given the dubious quality of civic discourse conducted on social media, further restriction of expression on Facebook or Twitter might not be altogether a bad thing. But it is hardly the protection of freedom that advocates of such proposals imagine.
Another, more promising strategy involves legislation that ensures public institutions meet existing obligations under the First Amendment. Since 2019, bills to that effect have been enacted by Ohio, Colorado, and several other states. With some variation, these laws prohibit student speech codes, physically-constrained expression zones, and workplace conduct policies that penalize certain political or religious views. But this is, at best, a partial solution, since such laws exclude private universities, which are more influential than their enrollment figures suggest, and anyway their jurisdiction ends at the boundaries of campus.
Even the most sweeping legislation is impotent, though, if it has no basis in public sentiment. Research by FIRE and other groups finds significant divisions in public opinion, especially among the young. Racial and ethnic differences receive the most attention, but sex and sexuality gaps are even more striking. One study of college students found that 71 percent of males support legal protections for hate speech, while only 46 percent of women and 35 percent of gay and lesbian students do.
Whatever their sources in particular cases, these findings reflect genuine contradictions between liberal individualism and demands for group protection. It is a tension with which Jews have long been familiar. Before World War II, Jewish politics often emphasized the integrity and safety of the group, sometimes at the expense of individual freedom. That is why Holocaust survivors in Skokie opposed the ACLU’s efforts as dangerously naïve.
If the old arguments against freedom of speech were grounded in memory, the new ones seem to be based on a form of hope even more extreme than Glasser’s liberalism. Rather than merely seeking to avoid the worst forms of oppression, they aim at a utopia in which no one feels excluded, marginalized, or despised. For centuries, Jews were willing to accept their difference as the price of their survival. Now, although it celebrates aesthetic diversity, today’s left seeks the elimination of meaningful pluralism in morality, association, or way of life. This leads to a question for American Jews. Does freedom of speech threaten or benefit them? After all, one would be hard-pressed to argue that elderly Holocaust survivors living in Skokie were better off for having to watch swastika flags out their windows. But no popular embrace of neo-Nazism followed. Contrary to the warnings of liberals like Popper or leftists like Marcuse, a capacious understanding of the First Amendment dominated in the U.S. for the remainder of the 20th century, even as anti-Semitism continued to decline. Meanwhile, in countries like Germany and France, laws against expressions of Nazism and Holocaust denial have done little to curb anti-Semitism.
Anti-Semitism is once again on the upswing in the United States. In response, should American Jews withdraw support from the freedom of speech that enables attacks against them? Some Jewish and pro-Israel advocates embrace a version of that conclusion when they endorse restrictions on hate speech and demand that those standards be fairly applied to attacks on Jews or Israel. The reasoning evokes an older form of Diaspora politics: if verbal attacks on minority groups are going to be prohibited, then the important thing is to make sure Jews receive equal protection.
That logic is seductive but mistaken. There is no reason to think that the enforcers of speech codes will be friendly to Jewish ideas or interests. Whatever their ideological justification, the opponents of free speech tend also to oppose Israel and the Jews. The left that demands restrictions on hate speech and urges the canceling of public figures (and the hounding of ordinary people) also seems eager to defend its allies when they are accused of anti-Semitism. If trends continue, one can imagine certain expressions of support for Israel being banned from online platforms or college campuses as hate speech, and that Theodor Herzl’s The Jewish State could end up subject to the same fate as And to Think That I Saw It on Mulberry Street. It is also not coincidental that the anti-Semitic right is the right-wing persuasion with the weakest commitment to conserving long-held American liberties. With these two factors in mind, the wager that it’s better to allow unrestricted speech even if that speech is despicable—rather than empowering the government or other institutions to determine what speech is and isn’t appropriate—seems to be one that will continue to pay off for American Jews.
The defense of that idea will need to sound a little different than it has, however. As Glasser did some four decades ago, advocates of free speech today must seek to balance the impulses of memory and hope. But the old civil-libertarian remedies cannot by themselves heal America’s current disorders. In the Skokie affair, Glasser’s optimism was a useful counterweight to balance the defensive and suspicious attitude of some American Jews. Today, we need to be reminded of the dangers of enforced orthodoxy and official recognition of identities that exclude individual difference. In the America of the 21st century, this liberalism is more conservative than progressive, more fearful of the risks of suppression than confident of the inevitable victory of truth.
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