The Atlantic

An Abandoned Weapon in the Fight Against Hate Speech

A 1952 Supreme Court ruling gave civil-rights groups a way to combat anti-Semitism and other prejudices—but in the years since, it’s largely gone unused.
Source: Robert Eastman / Shutterstock / The Atlantic

“Jews will not replace us.” When 300 neo-Nazis marched with flaming torches through the central quad of the University of Virginia on a late Friday evening in August 2017, their message was clear. The college’s response, in contrast, was a study in confusion. As a public institution, wrote then-President Teresa Sullivan, the university “must abide by state and federal law” regarding the First Amendment rights of free speech and freedom of assembly. Short of barring the “torch-bearing protesters” as an imminent threat to safety, university officials’ hands were tied. National Jewish organizations such as the Anti-Defamation League and the American Jewish Committee concurred, denouncing the shocking display of hatred but urging the public to let the “protesters” voice their “protected speech.”

Yet after the violent weekend that led to one death and multiple casualties, UVA lawyers unearthed a decades-old state law still on the books that banned the burning of objects on private or public property “with the intent of intimidating any person or group of persons.” It turned out that the Virginia General Assembly had dealt with this very problem back in the early 1950s, when the Ku Klux Klan tried to launch a new campaign in the state. The legal means to prevent this racist and anti-Semitic menace without violating the First Amendment had existed. No one had remembered to look for it.

An overlooked law written for a danger assumed to be long past. A domestic extremist movement masquerading as a political cause. An unswerving fealty to the First Amendment blinding lawyers to the violent danger staring them in the face. This lonely epilogue to Charlottesville is a fitting symbol for the current crisis facing the American civil-rights movement. White supremacists have twisted the law itself into a weapon with which to launch a frontal attack on American liberalism.

That this brazen attack took place on a campus where I teach Jewish history, including the long Jewish struggle on behalf of human rights, only underscored another historical irony. Anti-Semitism has returned with a vengeance, yet American Jews have forgotten how to fight it.

From Charlottesville to Squirrel Hill, Pennsylvania, to Poway, California, American anti-Semitism has repeatedly demonstrated its deadly propensity for violence. The common link is a social mediascape in which anti-Semitic and racist ideas and memes freely circulate, intensifying as they do so. Yet most American Jews feel powerless to fight anti-Semitism, trapped in a simplistic understanding of the First Amendment. Separate church and state, they believe, defend freedom of expression, and fight for equal treatment and a race-blind society, and over time anti-Semitism and other hatreds will dissipate. So the logic goes. Many Jewish lawyers pride themselves on their defense of civil liberties, safeguarding the expression of even unpopular views, from politics to pornography. Some proudly defend the rights of neo-Nazis and other anti-Semitic bigots.

That principled approach has its virtues. Yet in our day and age, this civil-libertarian orthodoxy has left society reliant on the fuzzier tools of tolerance education, public shaming, and private litigation to fight anti-Semitism. As a result, the press often replaces the courts as the forum for judging harmful words. Civil-rights lawyering is reduced to an exercise in punishing violent hate crimes after the fact, rather than preventing them beforehand. And worst of all, free speech and hate speech are imagined as two disconnected islands of contradictory ideologies, separated by an unbridgeable sea of constitutional law, rather than interrelated categories whose shared history stretches back to the opening years of the 20th century.

Just like Virginia’s forgotten anti–Ku Klux Klan law, there is more to the story of American Jews and civil rights than a stalwart faith in the ennobling virtues of free speech. Across the first half of the 20th century, Jewish lawyers stretched civil-rights law wider and deeper than the pursuit of absolute individual equality in order to prevent both verbal and physical attacks on Jews and other vulnerable minorities. They employed the novel legal approach of group libel. Their efforts formed part of the larger Jewish drive to defend civil liberties and seek political inclusion. They yielded striking legal innovations, including a bevy of state laws to shut down the, which has never been overturned and remains relevant to contemporary civil-rights questions.

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