Sunday, September 27
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Charlottesville, The First Amendment, And The Limits of Tolerance

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In light of recent events in Charlottesville, VA, and the arrant display of cowardice on the part of Donald Trump and his Administration in dealing with it, this "Skeptic's Collection" column from late 2014 -- which now seems like several Eternities ago -- is even more relevant now than when it was originally published. I have only changed the title slightly.

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I recently wrote a “Skeptics Collection” post in which I severely criticized a certain variety of contemporary Islam for being historically retrogressive, among other reasons, because of its militant religious triumphalism, its melding of political and military power with religious authority, and its hostility to any kind of critical stance toward Islamic history, sacred literature, and doctrine. I was careful to say in very explicit terms that Christianity had experienced essentially the same tendencies, so that Christians had no reason to feel smug about their own history vis a vis the Islamic world. Nevertheless, I argued, historical accidents aside, what sets the two great civilizations apart is, first, that Christianity had moved on and reached an accommodation between State and Church, whereas the Islamic world seems determined to remain in the 7th century; and, secondly, Christianity went through its period of religious warfare before the technology of violence made it possible to lay waste to entire nations at a time, whereas there is a very real possibility that in the near future, Islamic religious conflict may involve the use nuclear or chemical / biological weapons. I felt uncomfortable writing that post. The writing of it seemed somehow inconsistent with my own personal commitment to religious tolerance. All through that post, an important question was being begged: Is there a point beyond which tolerance ceases to be a virtue and becomes a vice?

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I believe the answer is “Yes”. I was also astonished to discover that, at the very time I was asking that question, I was serendipitously reading a document that contained at least the beginnings of an answer. That document is Areopagitica. Its author was John Milton. The religious war raging at the time he wrote it was the English Civil War. Milton published Areopagitica in 1644 in response to the Presbyterian-dominated Parliament’s passing of the Licensing Order of 1643, which required that, before the publication of virtually any book or pamphlet or any form of written material at all, the manuscript be vetted on behalf of Parliament by a cadre of censors, who would approve or reject the work according to political, theological, and doctrinal criteria established beforehand by Parliament, and, in the case of works of biblical interpretation, according to the orthodox Presbyterian biblical hermeneutics of the day. Milton was vehemently opposed to this kind of censorship, and, in prose that is an adroit combination of wickedly cutting metaphor and almost obsequious deference to Parliament, asserts that the Licensing Order is a mere Presbyterian equivalent of the imprimatur (Latin: literally, “let it be printed”) and the episcopal nihil obstat (“nothing objectionable”) of the Catholic Church, all of whose works and ways Milton execrated.   This is the same Parliament that would order the beheading of King Charles I five years later, so Milton’s obsequiousness was probably a matter of self-preservation as well as sincere conviction. But Milton also had reason to anticipate a favorable hearing, because in the process of coming to power and abolishing the Star Chamber, Parliament had already adopted a position in favor of a very robust freedom of the press – a position Parliament now rescinded in favor of censorship via the Licensing Act. Areopagitica reminded Parliament of its previous libertarian stance of greater tolerance.

The tendency is often to romanticize Milton’s advocacy of what we would today call “First Amendment liberties”. This view of Milton’s position is amply justified. But there were limits to the value Milton placed on tolerance, limits that are at least as instructive today as they were then, and that we can use as a template or pattern to model our own concept of the limits of tolerance. Let’s begin by permitting forms of expression that Milton would prohibit, specifically, texts advocating atheism and irreligion. Milton cites with approval the policy of the Athenian censors in the time of Protagoras, whose works (all caps in original):

… were by the judges of Areopagus commanded to be burnt … confessing not to know WHETHER THERE WERE GODS OR WHETHER NOT.

So we could not accompany Milton so far as prohibiting the works of, e.g., Richard Dawkins, Daniel Dennett, Sam Harris, and the late Christopher Hitchens. But aside from this proscription which we could not share, the only forms of writing / expression that Milton would not try to protect, and which consequently have no claim on our tolerance, would be those forms of expression which either advocate intolerance toward others, or whose purpose is to attempt to incite intolerance (boldface added)

Yet if all cannot be of one mind … this doubtless is more wholesome, more prudent, and more Christian, that many be tolerated, rather than all compelled. I mean not tolerated popery, and open superstition, which, as it extirpates all religious and civil supremacies, so itself should be extirpate … that also which is impious or evil absolutely either against faith or manners no law can possibly permit …

So the principle Milton espouses in Areopagitica is that, provided only that a book or expression is explicitly marked as to its author and as long as it steers well clear of advocating atheism, the individual reader / listener – not the government, civil or ecclesiastical – is to be the supreme judge of the value of the work. Milton cites the example in this regard of a pre-Constantinian Church Father (all-caps in original):

Dionysius Alexandrinus was about the year 240 a person of great name in the Church for piety and learning … [A] vision sent from God confirmed him in these words: READ ANY BOOKS WHATSOEVER COME TO THY HANDS, FOR THOU ART SUFFICIENT BOTH TO JUDGE ARIGHT AND TO EXAMINE EACH MATTER. To this revelation he assented the sooner … because it was answerable to that of the Apostle to the Thessalonians: PROVE ALL THINGS, HOLD FAST THAT WHICH IS GOOD.

 If we transpose this guiding Miltonian principle of tolerance to a more contemporary, secular key, editing out the typical mid-17th-century categorical animus against unbelief, irreligion, and atheism, then what is left is a principle that is both useful and contemporary – all the more so because it is religiously neutral: we are obligated to tolerate all but only those expressions – books, essays, films, etc. – that themselves do not advocate or promote intolerance. Whether the proscribed expressions emanate from jihadist ISIS / ISIL sociopaths or from Westboro Baptist homophobes or from Prof. Daniel Dennett implying that religious believers are not “bright” or from Bill Maher saying that all Christians believe in “talking snakes” is irrelevant. Issues of religion and the absence thereof are utterly immaterial. The only question that matters is Are we obligated to tolerate intolerance?

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 But even then, a salient question that gets begged is “Who is ‘we’?” As far as I can tell, there are only two possibilities:

o “We” is the government

Making the government the ultimate arbiter of which expressions are tolerant and which are intolerant is a bad, bad, bad idea from the get-go. Why? Well … now we’ve come full-circle: to discover the answer to that question, go read Milton’s great Areopagitica … which I have just been discussing. Or go and read the “abridgement” clause of the First Amendment, especially the two sub-clauses about freedom of speech and press, and some of the associated case law. (I would suggest beginning with Schenck v. the United States in 1919, and reading the other “abridgement” clause cases in chronological order.) For all the reasons cited in those documents, about the only guarantee we have, if we turn the task of such discernment over to the government, is that, over time, the government will prohibit too much. (I think that, because of the climate of the “red scare”, the Supreme Court even got it wrong in 1919 with Schenck.) That is why Federal courts employ a “strict scrutiny” standard of judicial review in cases that involve content-based restrictions on freedom of expression: allowing the government to determine which forms of expression are fit for us to see and hear and read is a desperately dangerous policy.

o “We” is “We the People”

This is, in a nutshell, what I understand to be Milton's solution:  allow each individual reader, listener, movie-goer, etc., to decide for him or herself what is tolerant enough to merit permissibility.  But does this not merely amount to a "censorship of one"? Quite candidly, the answer will usually be "Yes, at first". But if and when enough people become repelled by a common source of intolerant behavior, a certain "critical mass" may well over time be reached -- and in the recent past, has been reached -- that the aggregate revulsion of individuals amounts to a repudiation of the intolerant rhetoric and behavior of those that incited it ... all without recourse to the blunt instrument of the law. Consider homophobia. So radical and so rapid has been the shift in the climate of public opinion vis a vis homosexuality that -- to cite only a single representative example -- just recently I saw a large advertisement by the giant Marriott Hotel chain explicitly touting itself as LGBTQ-friendly. No law coerced the company into publishing the ad. The First Amendment rights of Marriott remained pristinely intact. But the company's behavior changed. This is not to argue that changes in the culture can obviate change in the law. Both have a place and always will. The relationship between the law and culture is always fraught, and sometimes changes in the former are needed to instigate changes in the latter.  Think "Civil rights, 1960s" here. Which should have precedence on any given issue is always a matter for refined judgment.

As Qoheleth says in the book of Ecclesiastes (KJV) "Let us hear the conclusion of the matter".  Any belief system, religious or secular, or the lack thereof, religious or secular, can be used as an instrument of intolerance against others, either through law or through attitudes based on invidious value judgments.  The particular belief system in question, while not irrelevant, is much less important than the purpose to which the believer puts that system.  Catholic ideology -- in Milton's case, high-Church Anglican ideology -- can be used to enforce intolerance.  So can atheism, as witness Daniel Dennett's invidious use of the term "brights" to distinguish atheists from believers, who are presumably "dulls".  But -- though Milton and his doctrinaire Presbyterian colleagues of mid-17th century England would probably disagree -- there is nothing intrinsic about Catholicism or atheism, in the hands of humane and decent people, that conduces to intolerance. Ditto Islam. Diane and I are intimate friends with several Muslim families, to the point that we consider them adopted family.  They are devout and passionate about their faith, but they are also among the most tolerant, compassionate, and welcoming people anyone could wish to know.  They place love and compassion above whatever strictly rule-based demands their religious faith levies on them, and they do this, not in spite of being Muslims, but because they are such.

Farewell celebration in the Hague in honor of Charles II's departure to England to take the Throne

As it turned out, Milton's Areopagitica was ahead of its time by roughly 150 years.  The radical Presbyterian Parliament rejected Milton's great tract, and the next two decades, some of the bloodiest in English history, would see King Charles I on the run from the armies of Parliament, his capture, his beheading in late January of 1649, his son Charles II fleeing to exile in France, the rise of Oliver Cromwell as "Lord Protector," the bloody persecution of Catholics and the wholesale burning of Catholic churches in Ireland, the beast turning on Cromwell himself, and the culminating bitter irony that sent a disillusioned John Milton into virtual self-imposed house arrest:  the Restoration of Charles II in 1660 and the accompanying moral and spiritual exhaustion of the entire nation. England would not have anything like the freedom of press and expression advocated by Milton until almost 1700, and it would not be codified as a matter of fundamental law until the First Amendment was passed and ratified in 1791. One can only wish that conservative Republicans, the Tea Party in particular, would learn tolerance and moderation at the feet of someone well-versed in the history of 17th-century England.

To paraphrase the National Rifle Association's iconic slogan Ideologies do not cause intolerance; people cause intolerance.

James R. Cowles

Image credits

"Censored" rubber stamp ... Piotr Vagla ... Public domain
"Areopagitica" title page ... Library of Congress ... Public domain
Bill Maher quote ... Bill Maher ... Public domain
Restoration of Charles II ... Hieronymous Janssens ... Public domain

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