In the late 1940s, what became the Federal Republic Germany faced a constitutional conundrum. On the one hand, after the ill-fated engagement with Nazi bigotry, Germans longed for a tolerant constitutional democracy that guaranteed basic rights – including the rights to democratic political participation and associated free speech. On the other hand, the pre-Nazi Weimar Republic had been a tolerant constitutional democracy, and the rights it had guaranteed – including those to political participation and free speech – were precisely those that the Nazis had used to take power before discarding the Weimar constitution itself.
What then to do after Nazism? Must a tolerant republic tolerate even the intolerant? If the answer was yes, is tolerance itself not effectively suicidal, hence unsustainably doomed to die?
The answer that Germany found was both elegant and instructive – and is an answer that we in the US must learn now. It is that a democratically tolerant polity need not roll over and play dead for the intolerant – any more than the world’s democracies had to roll over for Hitler once that form of tolerance known as ‘appeasement’ had failed by 1938. No, the founders of Germany’s post-1945 Federal Republic concluded: a durable, resilient democracy must be what they called a fighting democracy – a ‘Streitbare Demokratie’ – that neither undertakes nor recognizes any putative obligation to coddle the very intolerants who wouldn’t tolerate it.
This constitution has served Germany well. Unlike in many other countries with troubled intolerant pasts, Germany has not seen a state-threatening resurgence of rightwing (or left-wing) political violence since 1945. Nor do its tolerant citizens feel put upon or unduly constrained by a constitutional order in which illiberal advocacy and office-holding, Holocaust defense or denial, and explicitly bigoted symbols and speech are deemed legally out of bounds. Sure, there are occasional attempts at Nazi revival, and there are (exceedingly comical) complaints by neo-Nazis that their ‘rights’ are denied when they’re not allowed to deny others’ rights. But this is no more surprising, or worth respecting, than were slaveholder complaints about ‘expropriation’ by Abraham Lincoln’s 1863 Emancipation Proclamation.
This of course brings us to the US right now, which experienced its own ‘Beer Hall Putsch’ – I allude to Hitler’s first failed coup attempt – this past January. Please take a moment to recall the context: A race-baiting demagogue said by his spouse to keep a book of Hitler’s speeches by his bedside legally won election to the White House in November 2016. Four years later, after a tenure that can only be deemed unprecedentedly catastrophic for the citizenry’s political, economic, and even physical wellbeing, this same man propagated what is now called ‘the Big Lie’ – itself a term taken from Hitler and Joseph Goebbels. He claimed without evidence of any kind that he’d actually won re-election and been thwarted only by fraud – the sort of thing that might have rendered insurrection in the name of democracy more understandable.
Two months later this same man incited a violent and ultimately cop-killing coup attempt in front of the US Capitol, where the November election results were at that very moment being certified by our national legislature – our duly elected Congress. And while there was some backlash against domestic terrorism and incitement for a few days thereafter, we are now at the point where insurrectionists and their media arms already are re-characterizing, when not denying, the coup attempt and re-propagating, if they ever ceased propagating, the Big Lie.
This is intolerable. If we are not to endure another bite at the apple by illiberal, anti-democratic demagogues like Hitler’s after his failed putsch, we must preempt it by now doing something like what Germany did only after that second bite. We must, in other words, revitalize our own Fighting Democracy. Happily, unlike Germany then, we already have both the Constitution and statutes that we need now to do it. I’ll explain in connection with each of the recommendations that I will now put on the table. Think of the latter as a game-plan for democratic revival and survival.
First, then, of course aggressively prosecute all involved in the January 6 insurrection itself – and resource the DOJ adequately to accelerate its already expeditious efforts on this score. Do not let up, speed up. Similarly, consider all groups involved in this atrocity for designation as domestic terror groups on all fours with the groups that attacked us in 2001 and after, per the terms of the post-9/11 Patriot Act. (Germany does the equivalent to this day.) There is no legal question here, only a zeal and resource question. Crucially, we must also include the inciters themselves among those prosecuted.
It would of course be unprecedented for a former US President to be prosecuted by the successor’s DOJ, but that is simply because it is unprecedented for a US President to have attempted a coup – in this case, an auto golpe. If we don’t want this to be precedented again, we must both shut down the people most likely to try it again and show what will happen to any others who try it. If prosecution here seems nonetheless apt to ‘look bad,’ Mr. Biden can appoint a Special Prosecutor. George Conway III or any other member of the Lincoln Project would make a good candidate here – no one has greater interest in restoring the Republican Party to its former role as a responsible institution than do these Republicans.
Second, Congress must pass the voting rights legislation now known as ‘H.R. 1,’ or the ‘For the People Act,’ with all deliberate speed. There is a rash of Jim Crow voter suppression bills now being passed or debated in most of the former Jim Crow states, not to mention some others. Georgia, of course, which laudably stood up to Trump on the integrity of its 2020 elections, has now officially caved. These laws virtually guarantee that there won’t be a replay of Democrats’ squeak-through victories in these states – including Georgia itself. Ironically, all that now stands in the way of H.R. 1 is the Jim Crow Senate filibuster itself. This has to end. Either scrap the filibuster altogether (best), or roll it back with respect to all fundamental rights legislation – especially voting rights legislation (second best) – which is as anti- Jim Crow as legislation gets.
Third, it is time to get serious about slow-rolling incitement to insurrection of the kind daily perpetrated by rightwing media outlets. When you nightly tell scores of millions of already violently-angry viewers falsely that their elected federal government is literally engaged in an ‘all out of attack’ on their Bill of Rights and ‘American principles,’ you are telling them to engage in armed insurrection – especially when you speak of ‘2nd Amendment rights’ and air footage of street violence in the same breath. For the American Revolution that we celebrate just was an armed insurrection against constitutional rights rollbacks. Similarly, when you outright lie about what happened January 6 of this year or Election Day last year, you are both retroactively endorsing violent insurrection and the would-be insurrection-justifying Big Lie. For had the election actually been stolen, January 6 could at least arguably have been defended in good faith.
It is crucial to realize in this connection that the First Amendment does not protect outright lying. (Any lawyer will tell you the Constitution isn’t a suicide pact.) You have a right to be wrong, but you don’t have a right to be intentionally or recklessly wrong. And there is simply no way to listen to many ‘news’ outlets’ nightly incitements to violent outrage without seeing that they’re knowingly, willfully, intentionally lying – and doing so to incite violence. Take some recent attacks upon Defense Secretary Austin and other military brass, for example. The attacking host ceaselessly asserts that General Austin was simply ‘paid by Raytheon’ before assuming his post at Defense, never once mentioning the General’s uninterrupted 41 years’ distinguished service, most of them in top leadership, in the US Army. This he does while also claiming, again outright lying, that the military is not tracking military threats from the likes of China.
There is no point in pussyfooting this – it is deliberate and constitutionally unprotected lying. It is lying, moreover, calculated to foment insurrectionary impulses by implying that our most crucial republic-defending institution, our Department of Defense, is itself no longer legitimate. Politicization of the military, moreover, is always a sign of late-stage republican degeneration into anarchy, suspension of constitutional order, and ultimately demagogic dictatorship – something that one ‘news’ host in particular has now begun both directly and through his guests even openly calling for.
We don’t have to take this sitting down. We don’t have to take it any more than post-1945 Germany does. Nor can we afford to keep taking it. Neither our Constitution nor communications law requires we do – indeed they require the contrary. The FCC must accordingly reinstitute an updated rendition of its Fairness Doctrine, which was in place from the 1940s until 1987, the repeal of which by an all Republican vote made media balkanization and seditious broadcasting possible in the first place. (Ever wonder why it all started in the 1990s? This is why.) It must also announce that it will begin reassessing the cable and broadcasting licensing of programs or networks that daily engage in sedition and violent incitement. Again, this is not to say that there isn’t a right to opine vigorously or even to be wrong. It is only to say there’s no right to be deliberately or recklessly wrong – that is, to lie – particularly when the lying is geared toward incitement to violence instead of reflection and deliberation.
Anglo-American law boasts an elegant principle known as the ‘Clean Hands Doctrine.’ Other legal traditions observe counterpart maxims. The idea in essence is that those who commit wrongs against others ‘will not be heard’ to complain of others’ committing these same wrongs against them. We can think of it as a sort of legal corollary of the Golden Rule – don’t complain about others who do unto you as you do unto them. In a constitutional democracy, the form this rule takes is tolerance of all but intolerance. This is of course common sense, a matter of fairness and self-preservation alike. But it also is more than that. It is the law of a durable Fighting Democracy.