Assembly At A Price
I wrote this essay for my First Amendment class at CUNY Law. It was quickly put together so it is not heavy on empirical or historical research but I stand behind the ideas. That being said, I would be interested in hearing any comments or criticisms!
Freedom of assembly is, like most rights granted under the First Amendment of the U.S. Constitution, a bourgeois right. Bourgeois not only in its origins, having been written by plantation owners, merchants, and other capitalists, but more so in how it is structured in regards to the state action requirement, the expanded definition to allow corporations to shamelessly use conflicts minerals, etc. But this nature is not incidental to its construction nor some modern consequence of Citizens United or some other bogey man. Freedom of assembly is not simply bourgeois in law, it is bourgeois in its ethical framework, in that the ideas of formal equality and the marketplace of ideas it promotes entrench the dominant hegemony, silence de jure the working class, and allow the political discourse to be constructed between two poles: the neoliberal right and the fascist far-right. And few things expose the truth of these ethical aims like the hand-wringing over the “Alt-Right.”
There are two ethical arguments most often used to defend the modern idea of free speech: formal equality (a libertarian ethic) and the marketplace of ideas (a utilitarian ethic). The formal equality argument in short is that liberty of individuals from the dictates of the state is itself worth promoting, and thus the state should not only refrain from restricting rights but do so without exceptions. The “Proud Boy” screaming “blood and soil” in Charlottesville at terrified residents should be allowed to do so because the Buddhist is allowed to stand in a public area in silence to protest U.S. wars, the liberal is allowed to march the streets in their pink hat calling President Trump a fascist, and so on and so forth. Of course formal equality is an idea widely criticized in legal scholarship but the ethical argument is different. We are not talking about formal equality as a legal mechanism to promote justice but rather formal equality for its own sake. But what objective reason is there to treat all protesters equally? One would be hard-pressed in the wake of Charlottesville to argue that formal equality of assembly is utilitarian — after all, the public good was not benefited by having people of color, the LGBTQ community, and immigrants terrorized, let alone the loss of Heather Heyer. Further formal equality does not even achieve its supposed end, as shown by the recent cases of George Ciccariello-Maher, Michael Isaacson, the anti-BDS legislation, and the prosecution of the J20 protesters. The truth is that formal equality is a fiction created not to treat all equally but to justify the tolerance to reactionary ideologies. The political hegemony of this country is right-wing; whatever the disavowals of Republicans otherwise, it is to their benefit for there to be public discourse to the right of them, making them seem more reasonable. After all, with the exception of our fascist-sympathizing president, few condemned the Charlottesville Alt-Right protesters as quickly and fiercely as the Republican mainstream. And it’s that dynamic, free speech as a tool to protect the far right, that informs the second ethical justification.
The market place of ideas concept posits that free speech creates a richer and more comprehensive political discourse. Ideas once thought of as radical, like the abolition of slavery, benefited from the media (albeit in pamphlets rather than Twitter) to attain acceptability as part of the U.S. political hegemony. While the marketplace of ideas creates some dangerous ideas like the Alt-Right, it balances it out by allowing beneficial ideas to grow from their start in obscurity or radicalism into the mainstream without the interference of the state. This ethical argument is hard to dispute if we assume its bases are valid. While the death of Heather Heyer is horrendous, it would certainly be morally justified to accept that loss to ensure that progress like the abolition of slavery continues unabated. The problem is that the bases are false as born out by practically every example of political justice in modern history. It’s true that the abolitionists used pamphlets (and for that matter political rallies) to spread their ideas but (1) those ideas were usually encouraging illegal action and thus were often not subject to First Amendment protections, and (2) did not abrogate the need for a violent civil war to actually achieve the abolition of slavery. Revolutionary changes in politics have always happened through struggle against the state, sometimes without physical violence but often with physical violence. The Alt-Right protesters at Charlottesville understood this. They did not go to voice their ideas; they went to crack skulls, and did so fairly successfully despite the police eventually declaring it unlawful and gradually dispersing it.
This is not however to belie the importance of having a diverse political discourse. In fact, there is every reason to believe diversity of discourse does not depend on freedom of speech as currently conceived. After all, Citizens United has helped to put political power, and thus a platform to actually be heard, in the hands of a small set of the population. Working class people are denied assembly and speech in the working place. People of color are denied it by a corporate hegemony that tells the white and powerful what to think about them (e.g. 50% of portrayals of Latino immigrants in T.V. shows depicting them as criminals), and their smaller and less powerful outlets can do little to take it on in the competition of the market.
Freedom of speech’s marketplace is just like the capitalist marketplace it is implicitly beholden to: the masses get the choice between Burger King or McDonald’s, and little to no choice in how the resources of their own society are distributed. Preventing the state from interfering with speech does not guarantee speech or a diversity of political discourse when the platforms come at an economic cost that the state fails to alleviate.
The ethical alternative is the affirmative promotion of the assembly and voices of the masses by the state. Not by refusing to interfere, but by providing the resources to have a diversity of perspectives heard and eliminating those perspectives that unequivocally harm the ability of others to be heard. The Alt-Right has always been upfront about its goals to ethnically cleanse the U.S. — this unequivocally is the violent repression of the speech of others. The death of Heather Heyer was inevitable when such an ideology is allowed a platform. The solution is straightforward: no platform for those determined to deny diversity of speech, and creation of a diverse discourse through fostering all voices rather than allowing them to compete under the Darwinian dictates of capitalism.
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 See National Ass’n of Manufacturers v. SEC, 800 F.3d 518 (D.C. Cir. 2015) (NAM II).
 E.g. Catharine MacKinnon, Toward A Feminist Theory of the State (1989).
 Eva Recinos, “Why are half of Latino immigrant TV characters portrayed as criminals?” The Guardian (Nov. 14, 2017), https://www.theguardian.com/tv-and-radio/2017/nov/14/why-are-half-of-latino-immigrant-tv-characters-portrayed-as-criminals
 “Immigration,” Gallup News (June 2017), http://news.gallup.com/poll/1660/immigration.aspx (from 2001 to 2017, 45–50% of those surveyed believe that immigration is making “the crime situation” worse).