The recent events in Charlottesville, Va., have opened wounds that seemingly rarely get a chance to heal as of late. A large group of white supremacists, some of them armed, waving rebel flags and Nazi flags, descended upon the town. And then all hell broke loose.
After 32 year old Heather Heyer, an anti-Nazi protester, was run over and killed after a white supremacist drove his car through a group of protesters, and young, budding hip hop artist De’Andre Harris was beaten in a parking garage by five white supremacists, the scene in Charlottesville became dangerous, and the local police were criticized for failure to protect the non-violent protesters.
Any time incidents such as this one occurs, it brings forth the argument about whether hate speech is protected under the 1st Amendment. It seems that groups who outwardly profess their hate for another group of people would be severely regulated, if not outright banned, by the self-proclaimed Greatest Country in the World. Sadly, it is not.
The legal history between the U.S. Supreme Court and various hate groups and individuals has been surprisingly pro-hate, or at least affirming of a hate group’s right to declare their hate publicly. In the 1940’s, states began passing laws restricting hate speech. One of the first cases heard by the Supreme Court, Beauharnais v. Illinois, in which the defendant was arrested for distributing leaflets pushing for a petition for the mayor and city council of Chicago to “ to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro.” The criminal conviction was upheld by the Supreme Court. Justice Felix Frankfurter cited a breach in libel law as a reason for upholding the conviction.
After Beauharnais v. Illinois, Justice Frank Murphy stated in a summary of the law in question:
“There are certain well-defined and limited classes of speech, the prevention and punishment of which have never been thought to raise a Constitutional problem. These include the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words — those which by their very utterances inflict injury or tend to incite an immediate breach of the peace.”
In cases following this declaration, the Supreme Court used, and still uses, what is called the “imminent danger” test to determine whether the speech in question could potentially “inflict injury or tend to incite an immediate breach of the peace.” This was mainly used in cases where hate groups filed for legal permits to march or protest, and the state government denied them on the grounds that it would incite violence. For the most part, the Supreme Court has sided with hate groups, giving them the benefit of the doubt, hoping that peaceful protest and counter protest can occur.
Based on events over the past several years, it is time for the Supreme Court to side with the states when it comes to allowing hate groups to gather in public.
In today’s United States, racial equality is at the forefront of everyone’s minds. As the population becomes more aware of the plights of people of color, they are becoming more defensive of those people, ensuring that racial equality is achieved, if not worked toward. Ethnic minorities and their enlightened white allies have shown that they are willing to face this demon head on, suffering bodily and economic injuries in the process. It is a noble and worthwhile quest.
However, those who have not accepted the fact that the U.S. is as diverse as it is, and yearn for “the good ol’ days” where they could dictate where people of color could shop, drink water, and use the restroom, are now up in arms about “losing their heritage.” This phrase is evidence that not only do they not understand what heritage is, but that the heritage they are “losing” is one that is worth shelving…forever.
The Nazi movement in Germany is certainly a giant, festering wound on human history, but Germany refuses to allow such a blemish to prevent them from progressing. After the fall of Hitler and the ensuing reconstruction of modern Germany, the Allied forces made sure that German law made a provision that all Nazi iconography, from its symbols to its salute, were banned from the country. Aside from educational use, any German who owned, displayed, or acted in a manner considered Nazi-like, was subject to criminal prosecution.
This law, known as Strafgesetzbuch, S86a, states:
1. domestically distributes or publicly uses, in a meeting or in writings (Section 11 subsection (3)) disseminated by him, symbols of one of the parties or organizations indicated in Section 86 subsection (1), nos. 1, 2 and 4; or
2. produces, stocks, imports or exports objects which depict or contain such symbols for distribution or use domestically or abroad, in the manner indicated in number 1,
shall be punished with imprisonment for not more than three years or a fine.
(2) Symbols, within the meaning of subsection (1), shall be, in particular, flags, insignia, uniforms, slogans and forms of greeting. Symbols which are so similar as to be mistaken for those named in sentence 1 shall be deemed to be equivalent thereto.
(3) Section 86 subsections (3) and (4), shall apply accordingly.
Section 86.1, the section referred to by Section 1 above, defines the “parties or organizations” mentioned:
1. of a party which has been declared to be unconstitutional by the Federal Constitutional Court or a party or organization, as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a party;
2. of an organization, which has been banned, no longer subject to appeal, because it is directed against the constitutional order or against the idea of international understanding, or as to which it has been determined, no longer subject to appeal, that it is a substitute organization of such a banned organization;
These laws have resulted in the virtual disappearance of relics and reminders of the worst time in German history. It is time to adopt a similar policy for one of the U.S.’s worst eras: The Civil War.
Growing up in Georgia, it was often that the “stars and bars” were on display. Everywhere from people’s vehicles, to bars and restaurants, to gas stations and truck stops had the rebel flag plastered on any available surface. T-shirts with “Heritage, Not Hate” and “The South Will Rise Again” were as popular as wearing Atlanta Falcons shirts. Schools would fund field trips to Stone Mountain to see the laser show that played over the carvings of Confederate generals cut into the granite. The ghost of the Confederacy still haunts the South, and it seems no one wants to exorcise it and let it rest.
It is a popular opinion in the South that their identity is defined by the Civil War era, and that Southerners live better lives than “the Yanks” by being a simpler folk, telling it like it is, and holding onto the comforts of tradition. What they refuse to accept is that the nation, and the world as a whole, is changing and adapting. Southern tradition refuses to adapt, and the world is leaving them behind.
This is why many white supremacists feel threatened. They are quickly becoming a minority themselves, at least in belief. This is causing them to lash out and make sure the rest of the world knows they are still around. This garish display of believed superiority has increasingly become more violent, as white supremacists are now at the point where they are willing to cause others harm to push their agenda.
It is this increased chance of violence, coupled with the symbols and rhetoric of a racist heritage, that should cause the Supreme Court to re-evaluate their imminent danger test and encourage Congress to adopt a law similar to Germany’s Strafgesetzbuch. While the current Congress and administration would most certainly not be willing to try this, a movement must be started to pressure future Presidents and Congresspeople to pursue this avenue.
Banning symbols and restricting hate groups’ right to protest is not enough to snuff out hate, however. As stated by Ishaan Tharoor of the Washington Post, “This is not to say that a toxic ideology simply dies out with the retirement of its symbol.” Once the symbol has been removed from public use, unedited, uncensored education must be the tool to eradicate the ideology.
As for Southerners, they need to accept that the South is not going to rise again. In fact, it is falling at an alarming rate. They must make the choice to adapt and accept that their precious Confederacy is dead and that the world is leaving them behind, and make the effort to catch up, or face a life of universal ridicule for holding onto such a divisive, hateful, and obsolete belief system.
Americans in general also need to adapt and realize that even though free speech should have as little restriction on it as possible, those who choose to spread hate should be silenced. There is literally nothing good that can come from hate, which can’t be said about the lewd, obscene, and profane. Hate is not up for debate or interpretation, as the other categories are. Hate is a jackhammer to the foundation of progress. We, as a nation, need to pull the plug on that jackhammer and begin to patch that foundation.
Southerners, you’re welcome to help, if you’re up for it.