Boutique Faith

Jeremy Waldron

  • Courting the Abyss: Free Speech and the Liberal Tradition by John Durham Peters
    Chicago, 309 pp, £18.50, April 2005, ISBN 0 226 66274 8

I have always liked hanging around courtrooms. In the Crown Court in Oxford in the late 1970s, I happened on the trial of a racist agitator, who had festooned the streets of Leamington Spa with posters depicting Britons of African ancestry as apes. He was charged under the Race Relations Act with inciting racial hatred. Leamington Spa at that time was home to Robert Relf, a leader of something called the ‘British Movement’, who had made a name for himself earlier in the 1970s by advertising his house for sale ‘to a white family only’. I don’t remember exactly what Relf’s involvement was in the case that I sat through. I do remember that the defendant was convicted by the jury and sentenced by a crusty old English judge to a short term of imprisonment. The judge, who one might imagine would have had little sympathy with this newfangled legislation, gave the defendant a stern lecture to the effect that we cannot run a multiracial society under modern conditions if people are free to denigrate their fellow citizens in bestial terms. There was some shouting from the gallery as the defendant was taken away. The case made a deep impression on me.

I now live in the United States and teach at a law school. My colleagues are appalled when I tell them this story of the English racist sent to prison. This, they say, would never happen in America on account of the First Amendment, and it shouldn’t happen anywhere because free speech is a fundamental right. Recently, I have heard them voice similar views about the jailing in Austria of David Irving – the man who prided himself on having shaken more hands that shook hands with Hitler than anyone else in the world – for Holocaust denial. It seems that racists and Nazis are never far from the centre of concerns about free speech. In the US, First Amendment scholars point proudly to the famous intervention by the American Civil Liberties Union in 1977 to defend the right of National Socialist agitators, under the leadership of a man called Frank Collin, to march – swastikas flying – through a Jewish neighbourhood in Skokie, Illinois (a village just north of Chicago), where many Holocaust survivors lived.

Faced with the prospect of a Nazi march, the Skokie village board had passed ordinances banning parades with military-style uniforms, banning the distribution of pamphlets promoting the hatred of any group in the community, and requiring a $350,000 indemnity bond to be posted in advance of any march. The ACLU challenged these measures on behalf of the Nazis, and the Court of Appeals for the 7th Circuit declared the ordinances unconstitutional on First Amendment grounds. (In the event, the Skokie march did not take place. Collin’s Nazis marched in Marquette Park in Chicago and it was there that they handed out pamphlets saying ‘Death to the Jews’. Collin abandoned National Socialism after spending time in prison in the 1980s for child molesting.)

The ACLU suffered considerable financial difficulties and the loss of many members as a result of their defence of Frank Collin’s right to march. But over the years the Skokie affair has become for them a badge of pride. ‘I love free speech even more than I detest the Nazis,’ one civil libertarian said. And many members repeated the saying often attributed to Voltaire: ‘I detest what you say, but I will defend to the death your right to say it.’ Actually, as John Durham Peters points out in Courting the Abyss, there is no evidence that Voltaire ever said any such thing. An English writer, Beatrice Hall, writing under a male pseudonym in 1906, suggested that Voltaire’s attitude to the burning of a book written by Helvétius might be summed up: ‘How abominably unjust to persecute a man for such an airy trifle as that! “I disapprove of what you say, but I will defend to the death your right to say it,” was his attitude now.’ It was her readers – and countless civil libertarians afterwards – who made the mistake of attributing the saying to Voltaire himself.

Whoever said it, Peters has written an interesting and provocative book, exploring what might lie behind that smug liberal proclamation. To begin with, the language attributed to Voltaire is bewildering. ‘Defend to the death your right to say it?’ Whose death? How would death be involved? I guess its most attractive meaning is something like: ‘I will fight and, if need be, lay down my life for a Bill of Rights that may have this implication.’ A more troubling reading, however, is that Nazi speech is worth protecting even if a consequence of that protection is that someone gets hurt or killed. ‘I will defend your right to say it, even if your saying it makes violence more likely against the people attacked in your pamphlets.’ Is that what is meant? Defenders of free speech squirm on this point. On the one hand, they want to say that we should be willing to brave death for the sake of this important individual right. On the other hand, they assure us dogmatically that there is no clear evidence of any causal connection between, say, racist posters and incidents of racial violence, between pamphlets that say ‘Hitler should have finished the job’ and anti-semitic attacks, or between pornography and violence against women. Indeed, they pretend to have no idea of what such a causal mechanism could possibly be: ‘We are defending only the Nazis’ speech. How on earth could there be any connection between what they say and the things that some violent individuals do?’

It’s a strange dichotomy because, in other contexts, American civil liberties scholars have no difficulty at all in seeing a connection between speech and the possibility of violence. They point to it all the time as a way of justifying restrictions on citizens’ interventions at political gatherings. If Donald Rumsfeld comes to give a speech and someone in the audience shouts out that he is a war criminal, the heckler is quickly and forcibly removed. When I came to America, I was amazed that nobody thought this was a violation of the First Amendment. (Shouting comments at public meetings was another of my favourite pastimes when I was young and irresponsible.) But I was told by my American colleagues that heckling presages disorder, and disorder threatens security. There is a time and place for heckling – usually several blocks away in a pen set up by the police to ‘accommodate’ legitimate protest, which no one except the police and the protestors themselves, certainly not Donald Rumsfeld, has any prospect of hearing. And that’s all the First Amendment requires. So there is an odd combination of tolerance for the most hateful speech imaginable, on the one hand, and obsequious deference, on the other, to the choreography which our rulers judge essential for their occasional public appearances. The Nazis can disrupt the streets of Skokie, but those who disrupt Rumsfeld’s message will be carried away with the hands of secret service agents clamped over their mouths. I have given up trying to make sense of any of this.

‘I detest what you say, but I will defend your right to say it.’ The aphorism need not convey that free speech doesn’t have any costs; instead, the idea may be that if there are costs, we are the better for bearing them. As we watch the Nazis march by, we are nauseated, we shake inside with rage and our sleep is troubled for days. But it’s like physical exercise: no pain, no gain. We can’t build the sort of fearless characters that modern democracy requires, unless we have been through and survived this sort of trauma. This is the theme that Peters has made central to his book. Courting the Abyss is about free speech generally, but it focuses on this suggestion that we all become better people through tolerating the most hateful and diabolical speech, by staring at and listening to the Nazis and the racists in our midst.

Peters is interested particularly in the expression of a Stoic sense of virtue and self-mastery in the free-speech position. The civil libertarian says: I am sufficiently in control of myself to look on the Nazis without contamination. I will not be brought down to their level. By staring at their swastikas and paying attention to their slogans, I grow and become a better person. Indeed, we all become better people and our society becomes a better society with this ability to look unflinchingly into the abyss of racial hatred. Peters’s book is a story of ‘abyss-artists’, who put their evil on public display, and ‘abyss-redeemers’, who believe in a moral alchemy that can make virtue out of our gaze into hell. (Abyss-avoiders, on the other hand, are those who recoil from the display and either shield their own and others’ eyes or at least demand a better reason for ‘defending to the death’ the Nazis’ right to march through Skokie.) Abyss-redemption, he says, is a major and neglected theme in the history of liberal thought.

Peters is right about that. Abyss-redemption has not been studied as closely as some of the other considerations that are wheeled in to support free speech for Nazis. The arguments that get studied are about the vaunted ability of ‘the marketplace of ideas’ to produce and disseminate truth if only it is left unregulated: somehow, sounder views about human dignity will emerge if the Nazis march through Skokie. Or the argument is about the insult (to the rest of us) and the stupidity of assigning to legislators the task of determining which ideas should be permitted and which ones suppressed. (As John Locke once observed, truth ‘seldom has received and, I fear, never will receive much assistance from the power of great men, to whom she is but rarely known and more rarely welcome’.) Peters has plenty to say about these, too, much of it sceptical, all of it telling. He reminds us that it was Oliver Wendell Holmes who said, in a Supreme Court dissent in 1919, that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market,’ but also that Holmes spoiled the effect somewhat by holding a decidedly pragmatic view of truth, as ‘the majority vote of the nation that could lick all the others’.

The prospect of abyss-redemption is an adjunct to these other arguments: we know, for example, that John Stuart Mill thought the truth could not emerge except through ‘the rough process of a struggle between combatants fighting under hostile banners’, and that even where some doctrine is known to be true, we need combat with real opponents to maintain its vitality and keep us healthily on edge in its defence. ‘Both teachers and learners go to sleep at their post, as soon as there is no enemy in the field.’ If Robert Relf, Frank Collin and David Irving did not exist, it is as though we should have to invent them to keep alive the sense that fascism is vile and genocide forbidden. The virtue of looking into the abyss is a recurring motif in all sorts of free-speech argumentation.

Peters has, I think, done us a service in pursuing this idea of abyss-redemption. I don’t mean he commends it to us: he does not. But he rightly observes that we had better come to terms with it if we want to understand what is really going on, what has been going on for centuries, in free-speech debates. More than that, Courting the Abyss explores a number of connections between abyss-redemption as used specifically in this context, and other areas of life and culture where it is said that we are the better for gazing unflinchingly at sin or death or evil.

Some of these connections are literary or religious (or both). Abyss-redemption, Peters says, is the argument Milton’s Satan offers to Eve to overcome her reluctance to taste of the tree of knowledge of good and evil. ‘If what is evil/Be real, why not known, since easier shunn’d?’ There is something of it, too, in the argument of St Paul that we cannot know the law without knowing and even tasting the sins that its naming brings to the centre of our consciousness: ‘I should not have known what it is to covet if the law had not said, “You shall not covet.” But sin, finding opportunity in the commandment, wrought in me all kinds of covetousness’ (Romans 7.7-8). (I remember as a boy in Sunday school being very excited to find out that there was something called ‘adultery’ in the Ten Commandments, excited in part by the tight-lipped discretion with which Sunday school teachers responded to my impertinent questions on the matter.) This is an odd sort of tutelage that the law is supposed to provide: it sacrifices our innocence by calling sin to our attention, but it makes us more sophisticated in a grown-up form of virtue.

Some parts of Peters’s discussion are more interesting than others. There is a long disquisition on Adam Smith’s idea that a gentleman learns sympathy only as an impartial spectator of the suffering of others, and there is an attempt to connect abyss-redemption with the unflinching tough-mindedness of modern science. One gets the sense that Peters needed to squeeze in some of his favourite quotes – from Freud (‘Even the museum of human excrement could be given an interpretation to rejoice my heart’) and from Emerson (‘It behooves the wise man to . . . familiarise himself with disgusting forms of disease, with sounds of execration, and the vision of violent death’). Certainly, anyone looking for an analytically rigorous consideration of abyss-redemption will be disappointed. Peters’s book is impressionistic, free-ranging, jumpy, sly, tremendously informative, funny and in places overwrought, but it is not analytic.

That’s a pity, because his argument would profit from a more orderly examination of the various kinds of benefit that are supposed to flow from the confrontations envisaged by abyss-redeemers. We tolerate, listen to and gaze at things we ought to recoil from or condemn: is this supposed to be information, inoculation or exercise? Is it like the obligation to watch bad things on the news, replacing forms of wishful thinking with a sober awareness of what is really going on? On this account, if there are people thinking Nazi thoughts, we had better know about it and that’s why we let them march through Skokie. But if this is the argument, then it cuts in both directions: to imprison David Irving is a way of keeping our awareness of the Holocaust undiminished; it is like the citizens of Weimar being forced by American soldiers to walk through Buchenwald in 1945 and see the horrors of the camp, whether this is how they wanted to exercise their right of free thought or not.

Or is abyss-redemption supposed to make us better people in some other way: thicker-skinned, desensitised, hardened against evil, more easily able to shrug it off? Might it therefore make us more accommodating, less dogmatic in our views, more ready to share the world with others – with Nazis and racists? – in a live-and-let-live sort of way? If so, then that’s exactly the opposite of what someone like Mill was looking for. Mill thought we needed the spectre of horror and hatred more to keep our own convictions urgently alive for combat than to bury them in Stoic resignation. And it is arguably the opposite, too, of the sort of vigorous competition that the First Amendment is supposed to foster in the free marketplace of ideas.

Certainly abyss-redemption is not what is involved in the willingness of Gandhi or Martin Luther King to stare evil down, in a real confrontation. Non-violent confrontation does not hope to learn anything from evil; it is a mode of combating it and it summons its strength from its own resources. What is changed in the confrontation is the evil itself, by being witnessed in the light of day and shown for what it is, and that is quite different from our being changed – whether strengthened, inoculated or desensitised – by our confrontation with it. I emphasise this because, by the end of the book, Peters seems to think that this is the only form of abyss-redemption worth taking seriously, whereas I think a more careful analysis would show that it is not a form of abyss-redemption at all.

The more telling conclusion of Peters’s book is that, for all the excitement (his own and others) at this prospect of abyss-redemption, there is really precious little in it so far as the toleration of hate-ridden speech is concerned. At best, it is the boutique faith of a few liberals who take the resilience of their own voyeurism as a sign that speech is really harmless. If it signifies anything, what it signifies is that the costs of hate speech, such as they are, are not spread evenly across the community that is supposed to tolerate them. The Robert Relfs of the world may not harm the people who call for their toleration, but then few of them are depicted as animals in posters plastered around Leamington Spa. We should speak to those who are depicted in this way, or those whose suffering or whose parents’ suffering is mocked by Frank Collin and his Nazi colleagues, before we conclude that tolerating this sort of speech builds character.