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There’s No Such Thing as a Right Not to Be Called a Nazi

Supreme Court in the Winter
Supreme Court in the Winter
Vera Eidelman,
Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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April 17, 2019

For years, Gavin McInnes has spewed bigoted views on everything from race and religion to gender and immigration. He has described a transgender person as “[a] hideous man who thinks he’s a woman;” claimed that “Muslims can rape children with reckless abandon;” and argued that a Black man who is “mistaken for a homeless man,” should be “mad” not at the person who mischaracterizes him, but “at all the homeless black men who . . . created this stereotype in the first place.” As a result, McInnes has made quite a name for himself.

Yet in a lawsuit he filed in February against the Southern Poverty Law Center (SPLC), McInnes claims that it’s SPLC’s characterizations of him, not his own repugnant views that have given him a bad name in the eyes of the public. Specifically, he claims that SPLC has inaccurately characterized him as a “neo-masculine reactionary” and “self-described Islamophobe” who founded a “hate group” and expresses “extremist,” “blatantly misogynistic,” and “anti-gay” views. Because he maintains that he should instead be referred to as a “satirical” and “rebellious, humorist, businessman, political commentator and social critic,” McInnes sued SPLC for defamation.

As tweeted by his attorney, his theory is, in part, “You may not agree with what I say. But I hope you’ll fight with me for the right not be called a Nazi for saying it[.]” It’s worth noting it was McInnes’ attorney who used the term “Nazi” – that one didn’t come from SPLC.

The problem with McInnes’ theory is: that’s not how the First Amendment works.

Courts around the country have held that individuals cannot be sued for calling out the views of others as racist, fascist, homophobic, radical, or sexist. As we and the Center for Constitutional Rights explained in a friend-of-the-court brief we submitted last week in support of SPLC, such statements of opinion criticizing hateful or bigoted views lie at the core of First Amendment protection. They enable us to express ourselves (including our disgust), they animate our political discussion, and they offer us a tool to persuade others. For debate on political issues to flourish, we must be able to express our views about the prejudices of others without fearing that a defamation lawsuit could arise from our words.

The Supreme Court emphasized the danger that defamation suits can pose to First Amendment freedoms in New York Times v. Sullivan a defamation lawsuit brought by a police commissioner in Montgomery, Alabama against four Black clergy members and the New York Times. The commissioner sued over a full-page advertisement in the Times describing an “unprecedented wave of terror” unleashed to quash widespread, peaceful protests by thousands of Black students as part of the Civil Rights Movement. Although the ad included some factual inaccuracies, the Supreme Court held that the public official had failed to establish a case because he had not shown that the Black clergy members and the Times spoke with “actual malice”— that is, that they made the false statements knowing that they were false, or even with reckless disregard of whether they were false or not.

In reaching its conclusion, the Supreme Court emphasized our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” This commitment, embodied in the First Amendment, enables us to vigorously debate ideas and push for political and social change — both by vocally embracing the ideas with which we agree, and by lambasting those we wish were no longer accepted by others in society.

We all have the right to express our views, McInnes included. And we equally have the right to disagree with — and even condemn — the views expressed by others. McInnes’ attempt to silence those who have every right to call him out for his bigoted views should fall flat. That’s how the First Amendment works.

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