Who do we trust with our rights?

I HAVE read with interest and appreciation the discussion in SocialistWorker.org following the killings at the Paris offices of Charlie Hebdo, beginning with the statement of the International Socialist Organization (ISO) on January 8 ("Don't let this horror be used to stoke bigotry"); the thoughtful critique of ISO members Sofia Arias and Wael Elasady ("No tolerance for Islamophobia"); a response to Arias and Elasady by Alan Maass and Todd Chretien ("Resisting the tide of racism and repression"); and, most recently, a comment from Keith Rosenthal ("How far does free speech go?").

As all participants have noted, the starting point for the discussion is a shared opposition to Islamophobia internationally, and a determination to resist the exploitation of the killings at Charlie Hebdo by those who seek to increase repression and Islamophobia. There is also agreement that the use of the issue of free speech among government actors and in the mainstream media in has been hypocritical and racist, positing free expression as a civilizing Western value under threat from freedom-hating Muslims.

Most troublingly, as Arias and Elasady point out, the reaction has taken the form of "veneration of the racist publication as an example of 'heroic' and 'enlightened' Western values in the face of Muslim intolerance." One can and should oppose killings like those at Charlie Hebdo without endorsing racist caricatures, nor ignoring the fact that the greatest threats to free expression come from government oppression under capitalism and imperialism, nor that no group faces a greater threat to its rights to free expression than Muslims in France and elsewhere.

I have nothing to add to the discussion on these points, but I do want to express disagreement with Arias, Elasady and Rosenthal on the question of hate speech legislation aimed at content such as the cartoons published by Charlie Hebdo. Arias and Elasady say:

We...do not need to relinquish the right to challenge and in some circumstances even work to BAN racism like Charlie Hebdo's from being published through legitimate means, such as political organizing and public pressure. To us, organizing for laws protecting Muslims from hate speech can and should be a part of a broader fight against Islamophobia and racism that needs to be taken up by those who advocate for justice. Thus, exposing some of what Charlie Hebdo publishes as hate speech and working to curb this type of "free expression" is exactly what is needed to "combat anti-Muslim bigotry" by the likes of the National Front party of the French far right.

In his comment, Rosenthal calls for a reconsideration of the historical position of socialists in the ISO's tradition of opposing hate speech legislation because of its tendency to be applied most consistently against the oppressed. Maass and Chretien provided examples, including the banning by France of demonstrations in favor of Palestinian rights because, the government maintained, they could incite hatred toward Israel.

More recently, the French Interior Minister waited on line to purchase a copy of the first issue of Charlie Hebdo after the attack, even as the government ordered a crackdown on "hate speech, anti-Semitism and glorifying terrorism," resulting in the arrest of 54 people, including a comedian.

IN "FREE Speech and Political Struggle," the U.S. socialist Hal Draper argued in favor of struggle for laws against discrimination and racist violence, but against laws that would criminalize the expression of "stupid or reactionary opinions" by racists. "Of all the juridical weapons we cannot entrust to a state machine that is not ours, the worst is the right to be selective about democratic rights," Draper wrote. "Because the state will make that weapon a double-edged one; and the sharp cutting edge will be used against the people, not the fascists, in the long run, if not the short."

Draper distinguished between organizing against hate speech, including picket lines to disrupt events, and asking the state to suppress speech. He relates a story about the American fascist G.L.K. Smith, who was scheduled to speak in Los Angeles. Draper and the Workers Party attempted to attract others to a united front to picket Smith, but ended up picketing alone. Other groups made an effort to invoke a municipal ordinance which had been used against left-wing radicals to get Smith barred from a public school. Draper contrasted the two approaches:

Here was the counter-position: we were the only ones to initiate and launch militant mass action against Smith's meetings, but we refused to ask the government to dump what there was of free speech facilities in order to get at Smith. We organized people's action, but we refused to put this double-edged weapon in the hands of the government with our approbation.

While we should never make a fetish of absolute consistency, it would also be difficult to oppose laws as repressive measures when used against leftists or oppressed people, but favor those same laws when applied to racist speech. The U.S. Communist Party did not enhance its credibility when it supported the prosecution of Trotskyists under the Smith Act, only to condemn the Smith Act when its own leaders were being prosecuted.

Since Rosenthal discussed hate speech legislation in the U.S. context, there is also a practical question about what form such laws could take. The U.S. government represses free expression in many ways: By classification laws that make information property of the government to enable the prosecution of whistle-blowers for "theft"; by administering nominally neutral regulation of the "time, place and manner" of speech in a decidedly one-sided way; and by creating fantastic theories to tie political speech to actions in furtherance of terrorist conspiracies, even when those actions are by government informers and provocateurs.

What the U.S. government cannot do, however, is enact laws specifically regulating the content of political speech. Under the First Amendment, any such laws should be struck down--which is why government prosecution of speech is typically based on the incitement of imminent illegal actions.

Even when the government has acted aggressively to limit free speech, as it did during the McCarthy era, it has been inconvenienced by its need to maintain the appearance of the legitimacy of constitutional rights. Repression by direct criminal prosecution for the content of speech was problematic, which is why convictions under the Smith Act for advocating the overthrow of the U.S. government as an abstract principle were overturned.

"Prior restraint" through the banning of a publication would be even more difficult from a First Amendment perspective. A statute that could encompass the banning or prosecution of racist cartoons could not survive judicial scrutiny, so as a practical matter, it is not a demand we should consume energy pursuing.

BEYOND THE certainty that governments under capitalism will apply, in Draper's words, "the sharp cutting edge" of the "double-edged weapon" of speech restrictions against people already subject to state repression, Rosenthal's comment leans in the direction of being too dismissive of the importance of free speech to socialists.

He points out that "one of the first acts of the victorious Russian revolution which Lenin helped lead was to abolish the right of the capitalist class or its representatives to vote and to radically curtail their 'right' to free speech and assembly." This is true, but it was done as a necessary measure to meet the challenges of counter-revolutionary agitation and disinformation.

Victor Serge noted that in 1917, Lenin briefly proposed a measure allowing any group with the support of 10,000 votes to establish a newspaper at state expense. Circumstances required retreat from the goal of expanding free expression, but it is indisputable that at some point, restrictions on free speech became counter-revolutionary, as the Stalinist bureaucracy used the same measures adopted out of wartime necessity to protect themselves from criticism and organizing among the Bolsheviks themselves.

When and how this happened, and whether it could have been avoided, are disputed questions about which I don't express an opinion--but Serge notes in Memoirs of a Revolutionary that repression of speech went from being a painful necessity to a normalized routine, arguing that after the necessary suppression of the Kronstadt rebellion in 1921, dissident speech was suppressed based on bad political content, even if it posed no danger to the revolution, and any defense of free speech was dismissed as petty bourgeois libertarianism.

Draper describes a position on free speech he associates with Herbert Marcuse and "sophisticated radicals," which he derides as "alien to revolutionary Marxism":

There is indeed an opinion, held implicitly or explicitly, which goes like this: As long as we (the good guys) are not in power, we demand free speech and other such liberties--and we deserve them, because we are right. But wait till we get power: we are not going to be so foolish as to let you, who are wrong, make trouble and corrupt the People...

I don't for a moment impute the position Draper describes to Rosenthal, but I do think it makes sense to reinforce the importance of truly free expression as a goal that cannot be achieved under capitalism, but which will be a feature of a free society. Free speech should not be seen as a mere instrument to facilitate struggle, but a vital part of bringing about "the fullest opening-up of society to democratic controls from below."

As Draper states in the central proposition of his article on free speech: "There can be no contradiction, no gulf in principle, between what we demand of this existing state and what we propose for the society we want to replace it, a free society."