Free speech and the state

I WANT to respond to one point raised by Keith Rosenthal in his contribution to the ongoing discussion at SocialistWorker.org concerning Islamophobia and how to fight it ("How far does free speech go?"). Keith took issue with the following statement by Alan Maass and Todd Chretien ("Resisting the tide of racism and repression") in their opposition to laws banning hate speech:

While we sympathize with the anti-racist sentiments that lead people to propose [such laws], in practice, they accomplish the opposite. They strengthen the hand of the state or institutions that uphold a system based on oppression--and the consequence, again and again, is that laws against hate speech are used against the oppressed.

"I am aware," Keith wrote, "that this line of reasoning has historically been part of the [International Socialist Organization's] political tradition, but I think it's worth reconsideration." To bolster his call for reconsideration, Keith puts forward what seems like a very sensible argument: "Indeed, it is hard to see how calling for the state to repress white supremacist or anti-abortion extremist organizations, for instance, could possibly give it any further license to repress Black people or the left than it already feels empowered to."

I know that Keith and others have the best of intentions, but I believe that such a political position goes against everything the revolutionary socialist movement learned over the 20th century about the consequences of the federal government criminalizing political speech.

Revolutionary socialists have traditionally opposed the criminalization of any political speech, whether by the federal or state governments. Why would we want the U.S. government to decide what is acceptable political speech? During the two great world wars of the last century, the U.S. government passed anti-subversive laws that criminalized antiwar speech and other threats perceived by the federal government to be disrupting the war effort.

The infamous Espionage Act of 1917 and Sedition Act of 1918 allowed for the prosecution and imprisonment of hundreds of antiwar radicals, including the country's most famous socialist, Eugene Debs, and such exiled comrades as Mexican revolutionary Ricardo Flores Magon, who died in Leavenworth penitentiary from lack of proper medical treatment.

KEITH AND others may respond to this by saying that these were laws directed at the socialist movement and other radicals, not the far right or racist groups. The problem with this argument is that laws criminalizing political speech historically have been written very broadly against "subversion," and are subject to interpretation and wide discretion by federal prosecutors.

For example, the Smith Act of 1940 was passed by both houses of Congress and signed into law by President Franklin Roosevelt during a mini-"Red scare" on the eve of the Second World War. The Smith Act made it a criminal offense to "teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof."

This was the biggest legislative attack on free speech in two decades. It was well known at the time that the prime target of this legislation was the American Communist Party. But it also potentially allowed for the prosecution of fascist groups that could be tied to the German, Italian or Japanese governments.

After Germany invaded Russia in June 1941, the Communist Party (CP) dropped its antiwar activities, and became one of the most aggressive groups calling for the U.S. to enter the war. All plans for prosecuting the CP were dropped for the duration of the war.

Instead, federal prosecutors took aim at the very much smaller, revolutionary socialist rival to the CP, the Socialist Workers Party (SWP), whose leaders were made famous for leading the 1934 Teamster strikes in Minneapolis and had taken an anti-imperialist position on the Second World War. Eighteen members of the SWP were convicted under the Smith Act and sentenced to prison in December 1941.

The CP defended the federal government's prosecution and later loudly applauded their conviction as a blow against fascism. The Daily Worker, the newspaper of the CP, compared the policy of the SWP to the Nazis: "The leaders of the Trotskyist organization which operates under the false name of Socialist Workers Party deserve no more support from labor than do the Nazis who camouflage their Party under the false name of the National Socialist Workers Party."

After the SWP defendants appealed their conviction, the Communist Party actually submitted a brief to the appeals courts in defense of their conviction, including a pamphlet, entitled, "The Fifth Column Role of the Trotskyist in the United States." It claimed that "being a sabotage organization...[does] not require a large organization. This core of saboteurs is small, but its underground influence is large. Remove the core and you wreck a strong fascist weapon."

However absurd this may seem to us seven decades later, the leaders of the American communist movement truly believed that the deceased Russian revolutionary Leon Trotsky and the leaders of the SWP were part of an international fascist conspiracy to sabotage the war effort--and, evidently, the U.S. government did, too.

The CP learned nothing from the disastrous position it took towards the SWP and the Smith Act. After the war in 1948, the Communist Party's top leaders were indicted--and the next year convicted--under the very same Smith Act. The SWP attempted to be part of the campaign to defend the CP, but were blocked and denounced by Paul Robeson, who shouted to a cheering crowd, "Would you give civil rights to the Ku Klux Klan? These men [the Socialist Workers Party] are the allies of fascism."

DURING THE war years, the Roosevelt administration also indicted and prosecuted Nazis and fascists. A small-time fascist named George W. Christians, founder of the White Crusader Shirts, was indicted and convicted in 1942 for spreading dissent in the military. He was sentenced to five years in prison. In a much bigger prosecution, 30 of the country's best-known Nazis and fascists were indicted in 1942 and put on trial in 1944. A mistrial was declared after the presiding judge died, and the defendants went free.

Think about this for a moment: The anti-fascists of the SWP went to prison while the largest groups of organized Nazis and fascists in the United States--during an actual war against countries run by fascists--went free!

The Smith Act went on to become the legal instrument for the destruction of the Communist Party during the late 1940s and 1950s. Rarely, if ever, was it used again against the far right.

Keith and others may respond that this history goes very far afield from his original pitch for a reconsideration of the ISO's position on hate speech.

But does it? Last year, the U.S. Supreme Court overturned a Massachusetts "buffer zone" law that required anti-abortion protestors to remain a safe distance from the entranceway of abortion providers. Several anti-abortion groups challenged the law. But to the confusion of some, the Massachusetts AFL-CIO argued that such a broad law could be used against unions picketing a business. I think the AFL-CIO was absolutely correct.

Let me pose this question to Keith: If a Palestinian youth, enraged by Israel's genocidal assault on Gaza last year, spray-painted "Long Live Palestine" on a billboard that declared "We Stand with Israel," would that be a "hate crime"? I know Keith would say no--but under existing laws, it would be. Instead of a fine for some misdemeanor, that youth would be facing years in jail.

I think the history of criminalizing political speech in country shows very clearly that if the federal government is allowed to determine what type of speech is legitimate or illegal, then all progressive political forces will suffer.