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What if you own a hotel,
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and one of the key principles
in your mission statement
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is a commitment to treat
all employees and customers equally,
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including on the basis
of gender and religion?
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And then a large group
books an event at your space,
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and when you look at the booking,
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you realize that it's a religious group,
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and one of their key principles
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is that women should never leave the home
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and should have no opportunities
for professional development
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outside of it?
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What do you do?
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Do you host the event
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and get criticized by some,
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or refuse and get criticized by others?
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In my work, I counsel organizations
on how to create rules
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to navigate ideological disagreement
and controversial speech,
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and I defend my clients,
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whether in court or from the government
when their actions are challenged.
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The structures I recommend
recognize the real harms
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that can come from
certain types of speech,
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but at the same time seek to promote
dialogue rather than shut it down.
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The reason is that we need disagreement.
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Creativity and human progress
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depend on it.
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While it may be often easier
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to speak with someone who agrees
with everything you say,
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it's more enlightening
and oftentimes more satisfying
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to speak with someone who doesn't.
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But disagreement and discord
can have real and meaningful costs.
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Disagreement, particularly
in the form of hateful speech,
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can lead to deep and lasting wounds
and sometimes result in violence.
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And in a world in which polarization
and innovation are increasing
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at seemingly exponential rates,
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the need to create structures for vigorous
but not violent disagreement
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have never been more important.
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The US Constitution's First Amendment
might seem like a good place to start
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to go to look for answers.
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You, like I, may have often
heard somebody say
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that some form of a speech restriction,
whether from an employer, a website,
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or even somebody else,
violates the First Amendment.
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But in fact the First Amendment
usually has little if any relevance at all.
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The First Amendment only applies
when the government is seeking
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to suppress the speech of its citizens.
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As a result, the First Amendment
is by design a blunt instrument.
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A narrow category of speech
can be banned based on its content.
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Almost everything else cannot.
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But the First Amendment has no relevance
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when what we're talking about
is a private entity regulating speech,
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and that's a good thing,
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because it means private entities
have at their disposal
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a broad and flexible set of tools
that don't prohibit speech,
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but do make speakers aware
of the consequences of their words.
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Here are some examples.
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When you go to university,
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it's a time for the free
and unrestricted exchange of ideas,
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but some ideas,
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and the words used to express them,
can cause discord,
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whether it's an intentionally inflammatory
event hosted by a student group,
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or the exploration
of a controversial issue in class.
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In order to protect
both intellectual freedom
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and their most vulnerable students,
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some universities have formed teams
that bring speaker and listener together,
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free from the possibility of any sanction,
to hear each other's viewpoints.
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Sometimes students don't want to meet,
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and that's fine,
but in other circumstances,
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mediated exposure to an opposing view
can result in acknowledgment,
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recognition of unintended consequences,
and a broadening of perspectives.
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Here's an example.
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On a college campus, a group of students
supporting the Israelis
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and those supporting the Palestinians
were constantly reporting each other
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for disrupting events,
tearing down posters,
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and engaging in verbal confrontations.
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Recognizing that most of
what the students were reporting
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did not violate the university's
disciplinary code,
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the university invited
both groups to sit down
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in a so-called restorative circle
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where they could hear
each other's viewpoints
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free from the possibility of sanction.
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After the meeting,
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the ideological disagreements between
the groups remained as stark as ever,
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but the rancor between them
significantly dissipated.
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Now obviously, this doesn't always happen,
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but by separating reactions to speech
from the disciplinary system,
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institutions of higher education
have created a space
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for productive disagreement
and a broadening of perspectives.
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We're all biased.
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I don't mean that in a bad way.
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All of us are influenced, and rightly so,
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by our family background,
our education, our lived experience,
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and a million other things.
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Organizations do have influences,
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most importantly the beliefs
of their members,
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but also the laws
under which they are governed
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or the marketplace in which they compete.
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These influences can form a critical part
of a corporate identity,
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and they can be vital
for attracting and retaining talent,
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but these biases, as I'm calling them,
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can also be a challenge,
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particularly when what
we are talking about
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is drawing lines for allowing
some speech and not allowing others.
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The temptation to find speech
harmful or disruptive
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simply because
we disagree with it is real,
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but equally real is the harm that can come
from certain types of expression.
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In this situation, third parties can help.
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Remember the hotel trying to decide
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whether or not to allow
the religious group to host its event?
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Rather than having to make
a complex, on-the-spot decision
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about that group's identity and message,
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the hotel could instead
rely on a third party,
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say, for example,
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the Southern Poverty Law Center,
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which has a list of hate groups
in the United States,
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or indeed even its own
outside group of experts
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brought together from diverse backgrounds.
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By relying on third parties
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to draw lines outside the context
of a particular event,
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organizations can make content decisions
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without being accused of acting
in self-interest or bias.
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The line between facts
and opinions is a hazy one.
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The internet provides the opportunity
to publish almost any position
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on any topic under the sun,
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and in some ways that's a good thing.
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It allows for the expression
of minority viewpoints
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and for holding
those in power accountable.
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But the ability to self-publish freely
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means that unverified
or even flat-out false statements
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can quickly gain circulation and currency,
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and that is very dangerous.
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The decision to take down a post
or ban a user is a tough one.
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It certainly can be appropriate at times,
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but there are other tools
available as well
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to foster productive
and yet responsible debate.
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Twitter has recently started
labeling tweets as misleading,
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deceptive,
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or containing unverified information.
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Rather than block access to those tweets,
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Twitter instead links to a source
that contains more information
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about the claims made.
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A good and timely example
is its coronavirus page,
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which has up-to-the-minute information
about the spread of the virus
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and what to do if you contract it.
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To me, this approach makes a ton of sense.
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Rather than shutting down dialogue,
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this brings more ideas,
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facts and context to the forum,
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and if you know that your assertions
are going to be held up
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against more authoritative sources,
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it may create incentives
for more responsible speech
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in the first place.
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Let me end with a hard truth.
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The structures I've described
can foster productive debate
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while isolating truly harmful speech,
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but inevitably some speech
is going to fall in a grey area,
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perhaps deeply offensive
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but also with the potential
to contribute to public debate.
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In this situation,
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I think as a general matter,
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the tie should go to allowing
more rather than less speech.
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Here's why.
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For one, there's always the risk
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that an innovative
or creative idea gets squelched
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because it seems unfamiliar or dangerous.
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Almost by definition,
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innovative ideas challenge orthodoxies
about how things should be.
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So if an idea seems
offensive or dangerous,
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it could be because it is,
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or it might simply be
because we're scared of change.
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But let me suggest that even if
speech has little to no value at all,
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that deficiency should be shown
through open debate
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rather than suppression.
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To be very clear,
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false speech can lead
to devastating real-world harms,
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from the burning of women
accused of being witches in Europe
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in the 15th century
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to the lynching of African-Americans
in the American South,
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to the Rwandan Genocide.
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The idea that the remedy
for false speech is more speech
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isn't always true.
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But I do think more often than not
more speech can help.
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A famous story from First Amendment
case law shows why.
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In 1977, a group of Neo-Nazis
wanted to stage a march
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through the leafy, peaceful suburb
of Skokie, Illinois,
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home to a significant number
of Holocaust survivors.
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The City Council immediately passed
ordinances trying to block the Nazis,
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and the Nazis sued.
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The case made it all the way
up to the Supreme Court
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and back down again.
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The courts held that the Neo-Nazis
had the right to march,
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and that they could
display their swastikas
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and give their salutes while doing so.
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But when the day for the march came,
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and after all that litigation,
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just 20 Neo-Nazis showed up
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in front of the Federal Building
in Chicago, Illinois,
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and they were met
by 2,000 counter-protesters
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responding to the Nazis' messages of hate
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with ones of inclusion.
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As the Chicago Tribune noted,
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the Nazi march sputtered
to an unspectacular end after 10 minutes.
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The violence in Charlottesville, Virginia,
and indeed around the world
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shows this isn't always
how these stories end,
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but to me the Skokie story is a good one,
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one that shows that the fallacy
and moral bankruptcy of hateful speech
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can best be responded to
not through suppression
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but through the righteous power
of countervailing good and noble ideas.