Posts Tagged ‘Oliver Wendell Holmes’

Over the last week, we’ve seen several violent clashes between Nazis and counterprotesters. (Nazis might call themselves “alt-right,” “white separatists,” etc. Rather than give any credence to such rebranding, we’re calling them what they are: Nazis.)

It’s necessary to resist these losers, these tools of the powers that be. Violent defense of self and others is perfectly justified to repel physical attack.

But physically attacking people who are merely exercising free speech, no matter how loathsome, is never justified.

Last night, I saw a video of antifa protesters physically attacking Nazi organizer Richard Spencer, who was standing before microphones answering reporters’ questions. I was horrified on several counts:

  • Either you believe in free speech or you don’t. The principle of free speech applies to even the most loathsome speech — especially to the most loathsome speech. Once you start making exceptions for speech you really hate, it’s a very slippery slope to banning speech that anyone really hates, in which case freedom of speech vanishes. (“Anyone” here applies to any individual, group, or organization with the physical power to intimidate or beat others into silence.)

Another antifa protestor provided exactly the justification you’d expect for the assault on free speech, labeling it “violent speech,” saying that it was too “dangerous” to be allowed. (Speech is speech. Violence — physical attack on people or animals — is violence. These two wildly different things are not the same, and mere conflation of the two is not a convincing argument that they are.)

This is a broken record, the same rationale cited by every thug and bully since time immemorial who wants to deny others the right to free speech.

To bolster their position, one half expects antifas to begin citing the ancient half-witticism by authoritarian jurist Oliver Wendell Holmes, Jr. concerning “yelling fire in a crowded theater.” (Again, political speech is political speech; yelling fire isn’t — short of transubstantiation, it’s impossible to make the two identical.)

  • The antifa protestors physically attacking Spencer do not understand the most basic anarchist principle: The ends do not justify the means; rather, means determine ends. If you employ violent, authoritarian means, you’ll achieve violent authoritarian ends. In this case, the attacking antifas abrogated to themselves the right to determine what others can say. This is straight up authoritarianism.

Beyond that, there’s the simple matter of optics.

  • The video of the attack was shocking and repulsive. How in hell did those guilty of the assault expect people who witnessed the assault to react to it? “Good for you! A group of you beat up an unarmed man to prevent him from speaking! What a display of principles!”

As others have pointed out, such assaults give the moral high ground to the Nazis — the only moral high ground they can claim. Those who attacked Spencer achieved the near impossible: making a Nazi appear sympathetic.

In a related matter, I saw an interview with an antifa protestor blithely talking about deliberate property destruction during demonstrations. Yes, yes, yes, property is just property, vandalism and sabotage are not violence because they’re directed against things, not people or animals. Agreed.

But again, don’t they understand the optics?

When people see protesters smashing in the windows of, for instance, a Starbucks, it’s a fair bet that a good majority of them won’t say to themselves, “Another inspiring blow against global capitalism!” It seems more likely that they’ll say, “Why the tantrum? Why don’t they just grow up?”

An important matter here that no one seems to be talking about is that such property destruction is not a sign of strength; not a sign of good planning; not a sign of the organization necessary to the free, egalitarian reorganization of society.

Rather, wanton property destruction is a sign of weakness.

Real revolutionary change involves taking over existing structures (including physical structures) and transforming them, not wantonly trashing them — which is a sign that you’re letting off steam because you have no idea of how to get from here to there, no idea of how to get from this authoritarian, racist, sexist, exploitative society to the the society that you say you want.

Again — and it shouldn’t be necessary to say this — defending yourself and others from violent assault from fascists is completely justified.

But don’t confuse that with suppressing free speech.

Please realize that the ends do not justify the means. Means determine ends.

FIRE, n. The centerpiece of an ancient half-witticism parroted by the chronically unoriginal to justify censorship.

* * *

–from the revised and expanded edition of The American Heretic’s Dictionary, the best modern successor to Ambrose Bierce’s Devil’s Dictionary

American Heretic's Dictionary revised and expanded by Chaz Bufe, front cover

by Chaz Bufe, publisher See Sharp Press

In the wake of the Charlie Hebdo massacre, the enemies of free speech have been worming their way up through the floorboard. They range from religious fanatics openly supporting murder, to those who say–nudge, nudge, wink, wink–that those who exercise free speech should expect consequences. They range from PC multiculturalists, to Fox News commentators, to the pope. His comments were typical. He likened insults to religion to insults to his mother, and balling his fist said that those who make such comments should “expect to be hit.” He added that free speech doesn’t extend to ridicule of religion.

These remarks are very similar to Supreme Court Justice Oliver Wendell Holmes, Jr.’s  famous aphorism about yelling fire in a crowded theater, which he used as justification to restrict free speech in Schenck v. United States (1919), which upheld the Espionage Act. That Act had nothing to do with espionage, but was instead designed and used to suppress opposition to World War I.  Under it, thousands were prosecuted and jailed, often for years, for exercising the supposedly sacred right of free speech.

But do Holmes, the pope, et al., have a point? No, they don’t. They’re using argument by analogy, the weakest form of argument. Its weakness lies in that argument by analogy treats two dissimilar things as if they were identical, and then prescribes the “remedy” for one as if it were the “remedy” for the other. This only holds if those making the analogy can demonstrate that the two things are identical, or so similar that the differences between them are trivial. But they never do this, because they can’t. They’re attempting to arouse an emotional response, and hoping that listeners will be caught up in the emotion and will overlook the obvious fallacious nature of their argument.

If you doubt this, please notice that both Holmes and the pope used two of the most inflammatory, emotion-rousing analogies imaginable.

Also please notice that they don’t even attempt to demonstrate that “yelling fire in a crowded theater,” insults to one’s mother, and critical political and religious speech are the same, and so should be treated the same. Again, they simply can’t do this, so they rely on assertion and the inattention and  emotionality of their listeners.

If they want to outlaw yelling fire in a crowded theater, fine. Let them say so. And if they want to outlaw critical political and religious speech, fine. Let them say so, and let’s see them produce some actual justification for doing that rather than hiding behind false analogies.

If they want to outlaw certain types of speech, they need to demonstrate that those types of speech are threats to the public. But they can’t, and they don’t want to be open about what they’re up to, so they rely on weak arguments and emotional manipulation.

There are only two reasons why people advance the “yelling fire” fallacy. There are only two reasons why they advance this tired half-witticism: 1) They’re too dumb to know what they’re doing; or 2) They’re deliberately trying to manipulate and mislead.

Finally, regarding the pope’s comments: once past grade school, most people do not respond to comments about their mothers with physical violence. That’s called growing up, acting like an adult.


“This is a court of law … not a court of justice.”

–U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.

quoted in Devil’s Advocates: The Unnatural History of Lawyers

by Andrew and Jonathan Roth