Chelsea Handler’s Very Bad Idea

It would be nice if there were no bigotry. That would mean that humanity had skipped right past an epoch or two in its evolution from ignoramus erectus to some presently unimaginable species possessed of uncorrupted mindfulness.

Chelsea_Handler_LFBut no, it would not be “nice 2 have laws here for people who think racism is funny,” as somebody named Chelsea Handler (who is apparently famous, as it seems a lot of people are talking about this) suggested in a recent tweet. Because in its current iteration, our species counts among its number boundless tainted minds, which in turn manifest every manner of nescient and noxious belief. And as long as so many humans remain so many standard deviations removed from anything we might call enlightenment, we should think twice before criminalizing ignorance.

There are a number of difficulties with Handler’s brain belch. Here are three.

1. The First Amendment

There are two principles running through federal courts’ First-Amendment jurisprudence — one that’s intuitive and one that’s a bit counter-intuitive. The first and more obvious is that the most protected kind of speech is speech about politics, religion, or ideology. (The least protected kinds of speech, although they are somewhat protected, would be advertising and non-obscene pornography — two separate but related varieties of smut.)

The second principle, and the one that surprises some, is that the more controversial or less popular speech is, the more protected it is. I don’t need the protection of the First Amendment to march up and down a sidewalk waving a US flag, chanting “God Bless America,” and stuffing my fat face with granny-apple pie; nobody is going to bother me. On the other hand, If I’m burning a flag, chanting “Adelle sucks ass,” and drinking the (fake) blood of babes, I’m going to need me some five-alarm First-Amendment protection.

This brings us to racists, whom we can all agree are pigs and scoundrels. Notwithstanding all that, their message is a political and ideological one, and because their speech is controversial (and toxic, obviously), it is, believe it or not, precisely the kind of speech the First Amendment was designed to protect .

2. The slippery slope

And that, of course, is because racists would have it the same way Handler would have it: speech that is abhorrent to them should be unprotected. It’s worth remembering that racists were not so long ago in the majority (if they aren’t still), and that there was a time when it was the bellicose progressive minority that brandished the Bill of Rights in the face of that racist majority.

Broadly speaking — and leaving racism and bigotry aside for a moment — beliefs tend to seesaw between widely accepted and widely panned; to bless the oppression of currently disfavored views, therefore, is to invite a constitutional boomerang.

As Donald Trump and his ilk control the levers of government at almost every level, this would not seem the time to chip away at the constitutional provision that safeguards free thought and expression and the right of the people peaceably to assemble to petition the government for a redress of grievances.

3. Sunlight as disinfectant

Those who won our independence believed . . . that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. –Louis Brandeis, Associate Justice of the US Supreme Court, 1916-1939 (emphasis mine).

For the life of me, I can’t figure out why good people want bad people to stop talking (and by talking, I don’t mean inciting violence; I mean exposing their own foul minds). There’s a reason Trump’s emergence has cleaved apart so many friendships and relationships: the ugliness is spilling out into the open.

And that’s not a bad thing. I like knowing who in my orbit is a bigot and a clod; it makes it that much easier to cultivate the space around me in a way that brings into my life some measure of peace and reward. To cultivate such a space, one must pull some weeds.

And better that I should know fast and well and truly that my neighbor is a sniveling crackpot than that I should have to find out through the slow and torturous erosion of an illusory kinship that was doomed from the start.

When somebody tells me that he or she still — after all that has happened — supports Donald Trump, I know all I need to know about that person’s moral compass and intellectual rigor. It saves me a lot of time and heartache.

Were I the king of some university, I’d have that silly vulgarian Milos Yiannopoulos to campus at least twice every year. Only when these people speak do we know who and what we’re up against. We should give them all bullhorns as they bloviate their way into moral oblivion.

-bb