Teri Kanefield dives into the nature of the anti-democratic opposition, exploring political psychology and its impact on democracy. She highlights the challenge of eliminating this opposition and emphasizes the importance of neutral rules to protect free speech and criticism.
Published:February 1, 2024
*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
This week I plan to demonstrate that any democratic government—by its very nature and under its own terms—will have a dangerous anti-democratic opposition.
The opposition can be blunted and, with constant work, can be prevented from weakening or toppling the democratic institutions, but anti-democratic opposition can never be eliminated because (1) too many people have what political psychologists call an anti-democratic personality and (2) once you eliminate the opposition, you cease to be a democracy because eliminating the opposition cannot be done using democratic means.
Reason #1: A working democratic government, by definition, includes all people. When you include all people you include a lot of anti-democratic people.
The Authoritarian (or Anti-Democratic) Personality
As I talked about in “There are no Yankee’s here,” in the 1940s—when the world was reeling with shock over the rise of fascism that led to World War II and the devastating brutality of those regimes—German sociologist Theodor Adorno began studying what came to be called the authoritarian personality. The authoritarian personality is also called an anti-democratic personality.
A criticism of Adorno’s work was that he focused on right-wing authoritarianism. In fact, authoritarian traits have been identified in people across the political spectrum. Political psychologist Karen Stenner cites this chart:
Those with an authoritarian personality defer to established authorities, show aggression toward out-groups when authorities sanction that aggression, and support traditional values endorsed by authorities. The authoritarian personality can include rigidity, cynicism, intolerant behaviors, and glorifying toughness and power. As a general rule, people with this trait cannot tolerate complexity.
Political psychologists tell us that about 1/3 of the population across cultures has an anti-democratic personality. Karen Stenner says that people are born with an authoritarian personality as a predisposition.
Those with an authoritarian personality can be good citizens. They will embrace institutions and follow rules. However, when riled by what political psychologists call a normative threat, they can become cruel, can tolerate cruelty in others. When riled, they will endorse rule-breaking and will even elect a person who promises to break laws.
That 1/3 will always be with us. We can try to avoid the situations that rile them or cause them to descend into a cynical and destructive rage, and we can take steps to blunt their power, but they pose a constant threat. A readable version of “The Authoritarian Dynamic” is here.Reason #2: If you eliminate the opposition to democracy, you are no longer a democracy because you cannot eliminate the opposition using democratic means.
Come on Teri! The rhetoric coming from the right-wing extremists is dangerous! Why can’t we just outlaw dangerous speech!
Answer: Because of the First Amendment.
Let me tell you a few stories about people who did try to outlaw the “dangerous” speech of rebels, abolitionists, anarchists, communists, and socialists. These stories will illustrate how our First Amendment law evolved and why we have the rules we have.
Spoiler: The problem is defining ‘dangerous.’ In a rule-of-law government, the rules will apply to people you like and people you don’t like. That’s why rules need to be carefully neutral. So grab your favorite beverage and find a comfy chair.
When New York’s chief judge, Lewis Morris, issued a judicial opinion that Cosby disliked, Cosby removed Morris from office and replaced him with a loyalist who would do Cosby’s bidding. In response, Morris and two other lawyers founded a newspaper, the New York Weekly Journal. The New York Weekly Journal promptly began publishing cartoons and satire ridiculing Governor Cosby and accusing him and his administration of tyranny and violating the rights of the people.
Governor Cosby vowed to shut down the newspaper. He indicted Peter Zenger for violating the Sedition Act of 1681, which made it a crime to criticize the king. By the eighteenth century, the Sedition Act had been extended to any royal officers.
King George and Governor Cosby considered speech that incited anger against the royal government to be dangerous. And you know what? It was. It led to a bloody revolution and the overthrow of a government.
So Cosby brought Zenger to trial for printing dangerous, seditious stuff. Zenger’s lawyer, the renowned Andrew Hamilton of Philadelphia, said this in his closing argument to the jury:
The judge ordered the jurors to convict Zenger if they believed he had printed the seditious articles. The fact that Zenger had printed the articles wasn’t in dispute. However, in under ten minutes, the jury returned a verdict of not guilty. The spectators burst into applause. The story spread throughout the colonies. Colonists hailed Zenger and Hamilton as heroes who stood up to and defied the hated Governor Cosby who, in turn, represented the British rule that the colonists were coming to despise.
After Zenger was acquitted there was an “explosive growth of satirical attacks on various colonial governments.” Zenger’s trial didn’t establish new law or change existing law, but after Zenger’s trial, no British officer dared take a satirist to court in the colonies. The Zenger trial thus stands as a testament to the growing rebelliousness of the colonists, how the colonists felt about freedom of the press, and how they felt about the freedom to criticize the government.
The Alien and Sedition Act of 1798
America’s two-party system grew out of the debate over how to respond to the French aggression in Europe following the French Revolution.
Initially, many prominent Americans (including George Washington) sympathized with the French revolutionaries, who they viewed as common people tired of being taxed by an out-of-touch monarch.
But the French aggression was too much for President Washington, so in 1794, he authorized statesman John Jay to negotiate with the British. (Not surprisingly, all things considered, there was still some tension between Britain and the United States.) Jay sought to reconcile differences and open trade between the two countries. As a result, Congress entered the Jay Treaty with England and withdrew its support from France.
Then, in 1796, French privateers began seizing American ships. By 1798, the French had seized over 300 American ships. The United States and France thus “stood on the brink of war.”
On March 4, 1797, John Adams, a Federalist, was inaugurated as America’s second president. The Federalist Party had won majorities in both Houses of Congress, giving the Federalists control of the government.
James Thomson Callendar was a political writer and newspaper editor who was well-known for his sensational and controversial newspaper articles. After the Sedition Act went into effect, Callender launched attacks on John Adams and the Federalists, accusing them of engaging in a treasonous alliance with Great Britain. In 1800, with secret funding from Thomas Jefferson, Callender published the first of a two-volume pamphlet entitled TheProspect Before Us. The pamphlet opened with these words: “The design of this book is to exhibit the multiplied corruptions of the Federal Government, and more especially, the misconduct of the president, Mr. Adams.” His pamphlet included such passages as these:
Callender was arrested and charged with violating the Sedition and Aliens Act. He was brought to trial, found guilty, and sentenced to prison. Nine other journalists were also charged with and sentenced under the Alien and Sedition Acts. Each was tried and found guilty of publishing criticism of the government.
The First Amendment, which had been added to the Constitution a mere ten years earlier, had the support of some of the very people who now passed the Aliens and Sedition Act and were prosecuting journalists for criticizing the government. They saw no contradiction between the freedoms guaranteed by the First Amendment and imprisoning journalists for criticizing the government. The judges, too, who were overseeing the sedition trials and imposing sentences on the journalists did not believe they were violating the First Amendment.
“Wait, what?” you ask.
You see, freedom of the press, as understood in the late 18th century meant freedom from prior restraints.
In the 17th century, the law in England—and hence the American colonies—required newspapers and publishers to obtain licenses and advance permission from the government for anything they printed. This gave the government control over what was published.
By the mid-17th century, licensing was eliminated in the interest of creating a free press. However, someone who published material that violated a law could be prosecuted. As the jurist William Blackstone wrote in 1769, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
In the 18th century—as today—it was understood that certain forms of speech must be outlawed because it is dangerous and has no place in a democratic society. To take a few examples, blackmail (demanding payment in exchange for not revealing damaging information about a person), criminal threats (“give me your money or I will shoot you”) and perjury (lying under oath) are deemed incompatible with a rule of law society or too dangerous to be allowed.
It seemed reasonable to the judges that speech that might cause people to lose confidence in the government during a time of war and hence help destabilize the government, and was thus dangerous enough to be restricted.
The public had a different view.
Public opinion of the Sedition Act was (mostly) that politicians were taking undemocratic steps to shield themselves from criticism. Partly as a result of the outpouring of public anger against the Sedition Act, the Federalists were voted out of office in 1800. Thomas Jefferson, a Democratic-Republican, was elected America’s third president. The new administration, seeing the public fury against the Sedition Act, allowed the law to expire. As the United States Supreme Court later observed, the Sedition Act of 1798 “crystallized a national awareness of the central meaning of the First Amendment.”
Their rationale: Allowing speech that advocating Black freedom would destabilize Southern governments and maybe even lead to the overthrow of those government. (And you know what? They were right.)
The fear that enslavers would use any public discussion of abolitionism to further terrorize their enslaved populations further chilled speech about the issue.
At the same time, language that incited violence against Black Americans was tolerated and even encouraged by enslavers and law enforcement officers in slave states.
Abolitionist Wendell Phillips pointed out that restricting speech that advocated Black freedom meant that it was not possible to have a meaningful discussion about slavery. He said this was a problem because the drafters of the Constitution compromised on the issue of slavery with the understanding that the issue would be left to the American people to resolve. Obviously, the people could not resolve the issue if they were not permitted to talk about it.
(As an aside, the Courts couldn’t have used the First Amendment to stop Southern states from outlawing dangerous speech because the First Amendment wasn’t yet applied to the states through the incorporation doctrine, because the Fourteenth Amendment wasn’t added to the Constitution until after the Civil War.)
The Anarchy Act
Leon Czolgosz was born in Detroit, Michigan on May 5, 1873. He had only six years of schooling. In 1891, he began work in the Newburgh Wire Mill. He joined a labor union, participated in a failed labor strike, and, in 1898, he tried to join the Liberty Club, an anarchist group, but he was refused admission because the leaders didn’t trust him.
Knowing that President McKinley would be in Buffalo, New York in September of 1901, Czolgosz traveled to Buffalo and waited in the crowds. He carried a revolver concealed in a handkerchief wrapped around his hand. When the right moment presented itself, he fired two shots at the President. One shot missed, but the other hit McKinley in the stomach. Czolgosz was arrested immediately. Eight days later, President McKinley died and Czolgosz was charged in New York with murder. He was found guilty and was executed at the Auburn State prison on October 29, 1901.
In response to the assassination of President McKinley, New York passed the Criminal Anarchy Act. The Act defined criminal anarchy as “the doctrine that any organized government should be overthrown by force or violence, or by assassination of the executive head, or any of the executive officials of government.” The law made it a crime to advocate anarchy either in speech or in print.
Gitlow v. New York
Benjamin Gitlow’s parents were pro-labor activists and members of the Socialist Party. When Benjamin Girlow was eighteen, he, too, joined the Socialist Party. He soon moved into leadership positions. When World War I broke out in Europe, he announced himself a pacifist opposed to the war. After the Russian Revolution of 1917, he declared himself in support of the Russian revolutionaries.
In 1925, Benjamin Gitlow was on the managing board of Socialist Party’s newspaper. He arranged for the printing of sixteen thousand copies of a manifesto advocating a Communist revolution in the United States. Gitlow was arrested and charged with violating the Anarchy Law. He was brought to trial and convicted.
He appealed to the Supreme Court arguing that the Anarchy Law violated his First Amendment rights.
The question facing the Court was this: In a democratic government that allows freedom of speech, to what extent are people allowed to discuss ideas like communism and anarchy that the government perceives as dangerous because they advocate the overthrow of the government? At what point does suppressing ideas deemed dangerous turn a democratic government into a tyrannical one?
Then, in 1969, in a case called Brandenburg v. Ohio, the Supreme Court overruled the “clear and present danger” rule in U.S. v. Gitlow.
Clarence Brandenburg was a leader of the Ku Klux Klan in Ohio. If you want to know what kind of guy he is, he’s the guy in the sheet. He’s standing with his friend, Richard Hanna:
In the summer of 1964, Clarence Brandenburg gave a speech at a rally on a farm in Hamilton County, Ohio. The press was invited to attend. The event included twelve armed men wearing white hoods who burned a large wooden cross. Attendees made slurs against Black and Jewish Americans.
Brandenburg said the following to the assembled Klan members:
Brandenburg was arrested and charged under an Ohio statute that made it a crime to advocate violent means of overthrowing the government. He was convicted and appealed to the United States Supreme Court.
The Supreme Court overruled the “clear and present danger” test, and held that Brandenburg’s speech was protected under the First Amendment because it was “not directed at inciting or producing imminent lawless action” and was not “likely to incite or produce such action.”
In other words, discussing the moral propriety or moral necessity of violence was allowable as free political speech. On the other hand, “preparing a group for violent action,” crossed the line and was not allowable.
The Brandenburg rule and Abolitionist Speech
Law professor William M. Carter drew a connection between the Supreme Court ruling in Brandenburg’s case and the “perceived dangerousness of Black and abolitionist speech” in the early nineteenth century. During the era of slavery, state governments outlawed Black and abolitions speech because threatened the stability of southern governments and was thus perceived as dangerous.
The Brandenburg Court believed that allowing people to discuss ideas the government may perceive as dangerous and perhaps even threatened the government’s stability was necessary in a democratic government.
The 19th century abolitionists would agree.
McCarthyism and the Smith Act
Loretta Starvus Stack was born in Connecticut in 1913. At the age of 14, she worked as a silk weaver in a factory under oppressive working conditions. She didn’t like it, so at age 17, she organized a strike of 2,000 workers. The strike was unsuccessful, but it marked the beginning of her career as a political activist. She visited Russia in 1932 and allegedly learned to shoot and wield a bayonet. She admired the pro-labor ideals underpinning communism.
Not all Americans agreed with her. [Understatement]. Before Joe McCarthy and McCarthyism, there was Representative Howard W. Smith of Virginia, who introduced what became known as The Smith Act, which made it a crime to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.
The Act was intended to prevent a communist revolution in the United States.
In 1951, while Loretta Stack was working as the party’s organizational secretary, she and fourteen other members of the Communist Party were arrested in Los Angeles and charged with inciting women to take up arms in support of “socialism,” in violation of the Smith Act.
Loretta’s bail—and the bail of the others—was set at $50,000 for each, an impossible sum of money for a factory worker in 1951. Loretta and the other defendants filed financial statements demonstrating that the bail was more than any of them could afford. At the bail hearing, the government asked for pretrial detention arguing that, because Loretta was a communist, she was loyal to a country other than the United States—communist Russia—and therefore she might flee to Russia to avoid trial.
When her case went on appeal to the United States Supreme Court, the Court rejected the argument that high bail and pretrial detention was appropriate because Loretta embraced communism and therefore was not loyal to the United States. In fact, the Court held that incarcerating people before trial based on allegations that they were disloyal to the United States would “inject into our system of government the very principles of totalitarianism which Congress was seeking to guard against” in passing the Smith Act.
At Loretta’s trial, she was convicted of violating the Smith Act and was sentenced to five years in prison.Five years later, in 1957, in a case called Yates v. United States, the Supreme Court held that the Smith Act violated the First Amendment in that it allowed people to be prosecuted for their political beliefs. Loretta’s conviction—and the convictions of others who had been prosecuted under this statute—was reversed.I am not persuaded! These are terrible examples! People should not be allowed to advocate overthrowing or abolishing the American government.
The Declaration of Independence contains the self-evident truth that all men are created equal. The other founding documents did not, in fact, create equality. As Heather Cox Richardson explains in How the South Won the Civil War, when the Party of Lincoln sought to return to the founding egalitarian ideals and reject the institution of slavery, they embraced the Declaration of Independence and its self evident truths.
Well, you know what else is in that famous passage? This line:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. . .
See that pesky word, “abolish”? I suppose you can pick and choose the parts of that sentence you like and ignore the rest.
That’s why I always say democracy contains a self-destruct button. At any given time, if enough voters decide they no longer want a democracy, they simply elect leaders who promise to dismantle the democratic institutions and create an autocracy.
Where do you draw the line?
If you want to outlaw language that advocates overthrowing the government, what about anarchists who believe we should have no government?
What about the angry left-wing people who have tried to persuade me that a revolution is necessary because the democratic institutions are so hopelessly flawed that we need to burn them down and build them again?
What about the angry people who want the attorney general to put aside norms and rules because they are in a panic about the rising right wing?
Peter Thiel said he no longer believes that “freedom and democracy are compatible.” Is that allowable or is that dangerous?
Remember that rules must be neutral because they will apply to people you like as well as people you don’t like.
The problem with Magic Bullets
The magic bullet theory says that there is a thing that can be done that will get rid of (or silence) those who are trying to destroy democracy. “Let’s outlaw dangerous language” is a magic bullet.
If you have spent time in what we might call the Left-Wing Twitter ecosystem, you’ve seen a few cycles of these magic bullets:
2018-2019: People were loudly heckling Nancy Pelosi to impeach Trump. They genuinely believed that impeachment would topple Trump’s support and put and end to the threat he poses.
2020: People, perhaps the same people, promoted the theory that indicting Trump was necessary to save democracy and not indicting him quickly could mean the end of democracy. (If you missed them, see this post and this post.)
The Magic Bullet often involves a powerful person (Pelosi, Garland, the Supreme Court, etc.) who possess the power to do the thing that will make the problem go away, but stubbornly refuses to do it, either because of weakness or corruption.
The danger with magic bullets is that when they don’t materialize, people can become angry, disillusioned, and cynical, which in turn leads to destructive behavior. In fact, cynicism is a trait of the authoritarian personality.
The legal analysis isn’t difficult. Take the Brandenburg rule and apply it to Trump’s speech and ask yourself whether his speech (1) was directed at inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.
I think it is safe to say that the speech is acceptable under the First Amendment so it cannot be prosecuted.
After Trump made his “lay down their very lives” comment, these headlines appeared:
In the midst of a "descent away from the rule of law," Ohio faces a troubling new ethics meltdown of significant proportions. David Pepper uncovers the alarming issues plaguing the Buckeye state and asks: When will the tipping point will be reached?
David Pepper highlights a troubling proposal in Missouri that undermines majority rule through gerrymandering-influenced thresholds for a Constitutional Amendment. Protecting democracy requires united efforts.
Jen Mercieca writes: "Modern-day tune-outs might still get political news in ambient ways—when they do, it’s usually from unreliable sources and tends to be heavily skewed toward outrage-bait and conspiracy lies."
Teri Kanefield takes us on a journey through books exploring democracy's fragility and the strategies to preserve it. Exploring the work of Ziblatt, Levitsky, and others, she analyzes democratic norms, transitions, and Biden's response to challenges.