Tony Hovater, the Ohio man whose profile in the New York Times caused much indignation last weekend, would have been in jail or at least under close police surveillance if he lived in Germany. In the U.S., Hovater is free to keep posting swastika-filled pictures on Facebook — but the writer and editors who published a piece about him that was bleakly neutral in tone face ferocious anger for “normalizing” the Nazi sympathizer.
A certain part of U.S. society’s desire to set rules has been frustrated by the election of Donald Trump as president — though, in fact, it was frustrated even earlier, by years of Republican majorities in Congress. That frustration is manifesting itself as vocal outrage campaigns on the same social networks that have enabled Trump supporters to organize and white supremacists to find like-minded people in other parts of the country. But rather than bring change, the outrage will end up deepening rifts.
After 1945, Germany chose to pass laws that made most radical right propaganda, as well as Nazi symbols, illegal. These laws are still in force. The Constitutional Protection Office watches people who tend to cut it too close. A tourist who throws a Nazi salute in jest can get arrested. It’s not just swastikas that are banned — schools routinely forbid the wearing the clothes of certain brands that are associated with the neo-Nazi movement. Hate speech against groups of people, including races, is a crime. A vast majority of Germans approves of these rules. Those who don’t — such as members of the far-right NPD party or the most radical elements within the milder Alternative for Germany party (AfD) — keep quiet about it or run legal risks. Other countries without Germany’s history of Nazi rule — such as Sweden and Switzerland — have also legislated against Nazi symbols.
In the U.S. the swastika, so beloved of Hovater, the welder in the Times profile, and his fiancee, is protected under the First Amendment. The Supreme Court affirmed that in 1977 in the National Socialist Party of America v. Village of Skokie ruling. “Fighting words” — the unprotected U.S. equivalent of hate speech — have to be directed at a person to become punishable, although some racist speech can be qualified by the courts as libel. For decades, the U.S. has had extremely liberal free speech laws as a conscious choice. That’s why the American Civil Liberties Union vigorously defends white supremacists’ right to speak freely while condemning what they say.
A citizen who doesn’t break the law is protected by society as a whole, however immoral his actions. It isn’t writing about Hovater that “normalizes” his behavior; it’s the lack of legal consequences when he embraces Nazi symbolism. Trump’s election, Hovater told New York Times writer Richard Fausset, helped drive that home. He now brushes off attacks with “Yeah, so?”
All the outrage campaigns against “normalizing” white nationalism and sexual harassment, two sins of which Trump has been accused, might seem like a call for legislative change. But there is no serious movement for German-style hate speech laws or Nazi symbol bans making their way through Congress. There are no proposals to match this year’s German law that requires social networks to remove hate speech or face steep fines.
“Research shows that the dynamic that leads to outrage is not the same as that which effects change,” says Ronny Patz, a nongovernmental organization researcher at Munich’s Ludwig Maximilian University. “When such waves, such scandals come into focus, it helps when there’s already a process afoot that matches the outrage.” He means a legislative process, and he’s right. In response to the criticism of Fausset’s piece, The New York Times felt compelled to issue a deftly-worded non-apology and to remove from the piece a link to a website selling swastika armbands. But it’s a long way from this kind of damage control to real, lasting change.
Such change would require going through the normal political process: drafting legislation, pushing it through Congress and getting it signed by the president, or overriding his veto. In the U.S., of course, the Supreme Court could also legislate outside this process, as it effectively did with gay marriage — something that wouldn’t work in European countries, where referendums and parliamentary majorities have made the decision.
In the U.S., however, there’s no political majority capable of pushing through curbs on the freedom of speech, even in the name of fighting Nazis. There’s also no majority able to pass tougher sexual harassment legislation stipulating, for example, that a female accuser always tells the truth or that it doesn’t matter how long ago an alleged transgression took place. That’s evident from senatorial candidate Roy Moore’s continued popularity in Alabama. There’s also no effective anti-gun majority, and no anti-Trump majority, either.
In fact, I’m not sure there’s a workable majority for any kind of radical change.
In a political stalemate and under an administration that used Twitter and Facebook outrage to come to power, it’s clear why Trump’s opponents are trying out the same tools that worked for him. He didn’t suffer from repeatedly going too far, and perhaps his opponents can beat him at this game. I doubt they really want censorship (or self-censorship) in the media or a ban on closed-door meetings in the workplace — they just want to reassert their rule-making power, undermined by Trump’s victory.
In the process, though, they’re also making social divisions deeper, raising the stakes for those who voted Trump in. Outrage tends to do that. Who cares why Hovater is a Nazi sympathizer and his neighbors are OK with it — right? Nobody wants to win them over, anyway.
Leoinid Bershidsky is a Bloomberg View columnist. He was the founding editor of the Russian business daily Vedomosti and founded the opinion website Slon.ru.