The Right to Freedom of Speech: The Case of Punching a Nazi

On or near January 20, 2017, Richard Spencer was speaking before a camera when an activist punched him in the head and walked away. This set up a discussion - mostly online - of whether it is morally permissible to punch a Nazi.

Dan Arel argued that it was morally permissible to punch a Nazi. Actually, he said that people should punch Nazis. This is a type of moral command stronger than a mere permission. It is one thing to say that smoking is morally permissible - but quite another to say that one should smoke. It would be one thing to say that it is permissible to punch a Nazi - quite another to say that one should do so. Yet, Arel states explicitly that the answer to the question, "Should a person punch a Nazi?" is "Yes."

(See Danthropology, Should We Be Okay with Punching Nazis?"

We are going to have to say something about what "the right to freedom of speech" entails.

I argue that having a right to X means that it is wrong for anybody else to use violence or threats of violence as a way of preventing a person from doing X. Dan Arel, on the other hand, seems to think that only the government can violate a right to freedom of speech.

Spencer has the right to speak on the street corner. He did, and he paid the price for it.
The government did not arrest him for his speech. No violation of his speech was had. Free speech is not free of consequences.

This makes me wonder if Spencer thinks that only the government can violate the right to own property such that, if a citizen takes the property of another, then no moral violation has taken place. Or if he thinks that only the state can violate a person's right to life or against sexual assault, such that if a private citizen kills another or sexually assaults another the rights against murder and sexual assault are not violated.

Arel also exposes another inconsistency. He wrote:

Was it legal for the AntiFa activist to punch him? No. Does it make it morally wrong? I say, no.

That the punch was illegal is a descriptive fact that has little relevance to the discussion. It was illegal, at one time, to help fugitive slaves escape. This does not imply anything about whether one should help slaves escape. The real question is whether it should be illegal to punch a Nazi. Arel's moral statement is relevant to this question.

To claim that an act is not wrong, implies that it ought not to be illegal.

Saying that an act is not wrong does not imply that it is not, in fact, illegal. Many actions that are not wrong have been illegal.

Nor am I saying that everything that is immoral should be illegal. The law is a large and clumsy weapon, which simply should not used in all cases of immorality. For example, it would be foolish to say that every petty lie or breaking of a promise - though immoral - should be made illegal.

The claim here is that being immoral is a necessary condition for it to be the case that something ought to be illegal. The immorality of an action is a necessary condition for the act to be declared criminal. It is not a sufficient condition - but it is necessary.

Which means, if punching a Nazi is not immoral, then it ought not to be illegal. We should write into our laws against assault an exception with respect to punching a Nazi, as we include exceptions for (other forms) of violent self-defense. It says that our laws should be written such that, if a person is arrested for assault, "He was a Nazi" would be a legitimate defense against criminal prosecution.

For Arel to make his claims consistent, he has two options. He could say that punching the Nazi was wrong and that the assailant should be punished. Or do we say that it is permissible and that he did nothing that deserves punishment?

Should we write into the law of assault an exception in the cause of assaulting a Nazi?

In his article, Arel takes on two arguments against the punching of Spencer. One was a slippery slope argument - if we allow people to punch Nazis then this will start us down a slippery slope where people become justified in punching Christians, Muslims, union organizers, liberals, conservatives, anybody they disagree with. This is an unacceptable conclusion, so we ought to prohibit people from punching Nazis.

Arel objects that this is no slippery slope - we can easily distinguish between punching a Nazi (who advocates Genocide) and punching an atheist (who does not). Indeed, this seems to be the case - there is a distinction here that would make the slope a bit less slippery.

The other argument that Arel responds to is a "moral high ground" argument. This argument states that we should show how we are better than the Nazi by condemning those who would punch a Nazi.

The problem with this argument is that it is question-begging. The very point under dispute is, "What counts as the moral high ground?" If it not the case that punching the Nazi is wrong, then it is not the case that refusing to punch the Nazi is taking the moral high ground.

I share Arel's opposition to both of these arguments. However, I see two other arguments that are harder to handle.

The argument from consistency.

An argument from consistency is not a slippery slope argument. If somebody were to say, "Jim is a bachelor because he is an unmarried male," I might respond, "Well, Steve is an unmarried male. Your statement would imply that he is a bachelor as well." There is no slippery slope that takes us from Jim being a bachelor to Steve being a bachelor - they are both at the same level.

Arel states that what justifies punching Spencer is self-defense.

If you punch a Nazi, especially if you’re one of those marginalized and threatened by their ideology, you’re acting in self-defense.

This means punching somebody because, if one does not punch him, then something of value that one has a moral permission to protect with violence may be lost. My right to defend myself from the person who comes after me with a machete is grounded on the fact that, if I do not, I am at risk of suffering the loss of my life or limb. If there is no real chance of loss, then I cannot claim self-defense.

So, what are the odds that if Spencer had not been punched, somebody would have actually lost something of value that they have a right to defend using violence?

The odds actually seem quite small.

However, whatever the chances of somebody actually coming to harm if Spencer had not been punched is above the threshold of acceptable risk, then anything else that is above that same threshold justifies a violent assault on the grounds of self-defense.

This would include, I would argue, the business owner who is facing a protester who is arguing for an increase in the minimum wage. If the protester can convince enough people to get a law passed that increases the minimum wage, he is going to lose a lot of money. One has a right to self-defense to defend oneself from a robber demanding money, so, it seems, one would be justified in defending oneself against a protester advocating a law that would cause just as much financial harm.

In fact, given that nearly every political debate concerns the passing of a law that benefits one person at the expense of another, then nearly every political debate justifies violence against those who defend the law that would cause the harm. When debating a law that would imprison those convicted of drunk driving, potential drunk drivers have a self-defense claim in favor of violently assaulting those who defend such a law.

As it turns out, the person who punched Spencer proved that he was actually more dangerous than Spencer himself. In fact, if Spencer (or, say, a bystander - perhaps a friend of his) saw the blow coming, then that person would have been justified in pulling out a gun and killing the assailant. The killer, in this case, would have been able to claim "self-defense", and would have had a much more plausible claim. The killer would have actually been somebody protecting an individual from immediate violent harm.

This exposes another implication in Arel's position that reveals the flaw. To say that one is morally justified in punching Spencer is to say that Spencer has no right to defend himself from such an attack. Arel's moral position would obligate us to pass a law that not only states that, "The person I punched was a Nazi" be considered a legitimate excuse from criminal prosecution, but would make it a crime to knowingly defend a Nazi from such a punch. You have no "right to self-defense" to prevent an action that was, itself, perfectly legitimate.

On a related matter, the nation recently debated the merits of "stand your ground" laws when those laws lead to the untimely deaths of a number of people who would not have otherwise been killed. "Self defense" not only requires that the threat of imminent harm to persons or property by a violent assailant, it also requires that the agent escape if possible. The person claiming self-defense also had to show that he could not have escaped the attacker.

"Stand your ground" laws, in contrast, do not require that those who are defending people or property from a violent attacker retreat if possible. It gives them a moral permission to "stand their ground" and use violence against the attacker even when one could escape.

In this debate, many people argued that "stand your ground" was too liberal - that it justified violent defense of people or property under conditions where it should not be permitted. Ironically, many people who argue in defense of punching a Nazi (I have no idea if Dan Arel is among them) are people who argued against "stand your ground" laws. At least with respect to those people, one can levy a clear charge of inconsistency.

Causation

My second objection against this sort of violence is based on the issue of causation.

For an example of the type of argument that I am using here, I invite the reader to think back to World War II. In World War II, there was an argument against the use of chemical weapons on the grounds that, "If we start to use them, then the enemy will start to use them. We want to avoid a situation in which the enemy is using chemical weapons. Therefore, we have a practical reason not to use chemical weapons ourselves."

Note that this is not a slippery slope argument. This is not an argument that says, "If we permit the use of chemical weapons against Nazis, then we will start down a slippery slope where we will eventually come to judge it to be legitimate to use chemical weapons against enemies who are not Nazis." That argument is clearly flawed. However, the claim, "If we use chemical weapons then others will use chemical weapons" or "If we use nuclear weapons then we open the door for others to use nuclear weapons" remains a valid concern.

The issue is much more broad than the narrow threat of, "If we allow violence against Nazis then we open the door for Nazis to use violence against us." The problem can be more accurately stated as, "If we use violence against Nazis, we make it more likely that others are going to use violence against those they disagree with." The problem with using chemical weapons is not that one's opponent in this conflict may use chemical weapons in return. The problem is that it opens the door for people generally to use chemical weapons in any current or future conflict.

Arel points out that Germany has laws against Nazi speech, yet it has not suffered from this more general violence as a result.

Should Nazis have free speech? The US basically says yes. Germany says no. Now, I don’t think Germany is less free because of this, and I doubt its non-Nazi citizens do either.

However, that is not the end of the story. The fact remains that there are others who are denying the right to freedom of speech - to atheists, to political dissidents, to 'opposition parties' that the dictator wishes to outlaw - who point to Germany to justify their actions. When told that they are doing something immoral, they point to Germany and claim to be doing what Germany is doing. As a result, people lose their lives and freedom - in part because Germany refuses to respect a principle of freedom of speech.

In other words, there is atheist blood on the hands of those who defend Germany's laws against Nazi speech. That atheist blood may not come from the German, but it does come from people who find it easier to kill atheists, apostates, and political opponents because Germany asserts that it is legitimate to restrict the free speech of Nazis.

In fact, Arel's own appeal to the German denial of freedom of speech to defend acts of violence provides an example of the very thing he asserts does not exist - the appeal of German denial of freedom of speech to defend other acts of violence elsewhere.

On this matter, I would argue that Dan Arel's posting presents a much greater threat to my safety and the safety of other innocent people than Richard Spencer. It is much more likely that one will listen to Arel, take from it an attitude that a particular act of violence is justified, and engage in an act of violence than that Spencer's words. This is because more people are more likely to listen to Arel and conclude that an act of violence is justified than will draw that conclusion from Spencer.

This would make Dan Arel a threat - a more significant threat then Spencer. This, in turn, would justify the use of violence against him - to get him to shut up - before some innocent person is harmed as a consequence of his words. However, I would argue against such use of violence since I hold that Dan Arel has a right to freedom of speech that grants him a moral immunity from violence for mere words. The only legitimate way to respond to Arel is with a counter argument - which I present here.