By Jessy R. Nations

Dear Internet, I hope you’re happy. Just look what you did. You went and made Nazis again. Seriously, what were you thinking? It’s 2017 for crying out loud. I thought we all decided Nazis were bad like 50 years ago. But no, you just had to keep pushing that envelope. Now we have to do this for the next few years.

Under the guise of “free speech,” open racism and white supremacy have been on the rise. Whether they call themselves “Identarians,” “racial realists,” or the “Alt-Right,” these groups are everywhere. They’ve cleaned up their image and streamlined their rhetoric, but their core principle is the same: White people are better than everyone else, and are under attack from all the various minorities who should be removed by any means necessary. And it’s far more than just talk these days. To make matters worse, they’re recruiting. I vaguely recall a time when being openly racist would make you a social pariah. Now this behavior can land you a book deal, get you invited to talk shows, and give you a tour for you to speak at college campuses where you can threaten trans and immigrant students while your fans shoot protesters. In the interest of combating racism, this blog post offers a brief guide on how to spot these lunatics as well as some thoughts on what the law can do before they starting shooting up schools.

Key Alt-Right Groups

As I’ve mentioned, these alrt-right groups go by a lot of different names these days. Noted racist, Richard Spencer, heads up the innocuously named National Policy Institute. The National Policy Institute got together after the 2016 presidential election and gave a rousing speech saying “America was until this past generation a white country designed for ourselves and our posterity . . . It is our creation, it is our inheritance, and it belongs to us.”

Another influential group is known as Identity Evropa. Their fliers have popped up around the University of Washington, as well as other universities. These are a group of white, college educated, (mostly) men who call themselves “identarians.” They’ve been putting up fliers on college campuses saying things like “America is a white nation,” “Let’s Become Great Again,” “Serve Your People,” and “Our Destiny is Ours.” This is part of a larger recruiting effort that the group refers to as “Project Siege.” They’re currently seeking official student-org status at Penn State.

Outside of colleges, there is the group ACT for America. This is a fiercely Anti-Islamic group founded by the infamous Brigitte Gabriel in order to “protect” America. As she puts it, “a practicing Muslim . . . cannot be a loyal citizen of the United States.” Their membership includes Washington State Representative Matt Shea.

What Can the Law Do?

“Free speech” seems to be this magical phrase alt-right groups use to deflect any kind of consequences for their actions. The worst part? It usually works. Most people seem to think that freedom of speech entitles them to a platform, protects you from any consequences of your rhetoric, and ensures that anyone who so much as politely asks you to stop, hates freedom. But, this freedom of speech seems to apply exclusively to white supremacists. So what can we do to keep alt-right groups from taking over?

The Southern Poverty Law Center recently brought a huge invasion of privacy and IIED lawsuit against the owner of the Daily Stormer. You can read the complaint here. However, this is a reactionary response to hate speech. A more proactive strategy would be to go at them sideways, and bring lawsuits for unrelated things. For example, “new-right” personality Mike Cernovich uses his platform to hawk bogus “nootropic” supplements. It’s entirely possible one could bring a Consumer Protection lawsuit, also know as a UDAP claim against him.

Another option is to pressure social media platforms to enforce their Terms and Conditions. We could also stop referring to these people as “controversial far-right provocateurs” and start consistently calling them Nazis. However, I think it would be far more effective to change the way we think of the First Amendment and our Free Speech jurisprudence.

Most of us think of free speech in terms of what is being said and how it’s being expressed. There is very little talk about who is entitled to this protection and when they would be protected under First Amendment scholarship. A reading of many First Amendment casebooks reveals that white supremacist and other hate groups consistently get free reign to threaten minorities, while other groups exercising these same rights often wind up in jail. Where were the free speech advocates when Daniela Vargas was speaking out about her fears of deportation?  It makes no sense that a call for genocide is seen as an expression of opinion, while someone merely asserting their right to avoid being shot by police is being called a terrorist. This isn’t a difference of opinion. This isn’t an issue for civil discourse. These are threats to the American people, and should not be coddled by a perverse reading of the First Amendment.

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