The Anti-Fascist Boomerang

How anti-fascist speech laws end up targeting the Left.

Director J. Edgar Hoover fingerprints Vice President John N. Garner in approximately 1939. Library of Congress photo.

The resurgence of far-right movements in the age of Trump has reignited the never-ending debate over free speech and its limits. While the issue was most prominent in the wake of last year’s violence in Charlottesville, when the ACLU was heavily criticized for defending the free speech rights of Nazis and other bigots, the issue continues to be explored on college panels, and calls for the the state to do something about hateful but perfectly legal words from racists have outlived the incident.

It’s important to have perspective: while the vast majority of political violence is carried out by members of the broad Right, today’s white supremacist organizing in many ways pales in comparison to that of the 1980s and certainly that of the 1920s and ’30s, when fifty thousand KKK members marched down the streets of DC and the pro-Nazi German American Bund brought out 20,000 people to a rally in Madison Square Garden. While far-right terrorism needs to be taken seriously, it’s not clear that it should give us any more reason to panic than incidents of Islamic terrorism.

More specifically, there are good historical reasons why the Left shouldn’t support illiberal government measures in the name of crushing fascism. As the examples of the UK’s Public Order Act and the “Brown Scare” in the US show, once the tools of repression are deployed against hateful groups, their targeting inevitably drifts leftward over time.

The Public Order Act

The 1930s was a boom time for fascist organizing in the UK, where Oswald Mosley’s British Union of Fascists (BUF) boasted a membership of 34,000, a hundred parliamentary candidates, and fascists regularly marched in streets and brawled with counter-protesters across the country.

The response was the Public Order Act of 1936. Besides clauses aimed at outlawing the paramilitary-style activities of the BUF, the law also gave authorities broad powers to restrict and control all public protest — for example, to mandate when and where a march could go — if a “procession may occasion serious public disorder.” They could even ban protests altogether in a given area for as long as three months. This was deemed necessary because of the frequent incidents of public disorder caused by fascist marches.

The law wasn’t exclusively designed to deal with the fascists. It was also a response to authorities’ concern over communist organizing and the National Unemployed Workers Movement (NUWM), a group set up more than a decade earlier by members of the Communist Party of Great Britain that in 1934 brought 100,000 marchers out to Hyde Park.

Still, it was the looming threat of Blackshirts that most directly led to its enactment by the ruling National government. Previous legislation aimed at curbing communist influence had been opposed by the Labour opposition. But with fascists now engaging in regular bouts of street violence, Labour gave the new legislation its blessing.

As leading Labour MP Herbert Morrison reasoned: “A political organization which has the purpose of destroying freedom of action and freedom of political organization cannot itself very well plead the cause of freedom to do exactly as it likes.” Fascists wanted to destroy basic political freedoms, the reasoning went, so they didn’t deserve the protection of those freedoms.

Section Five of the bill, which garnered little notice at the time, would become infamous over the ensuing decades. The section made it a criminal offense to use “threatening, abusive or insulting words or behaviour” in a public place, a measure that Labour leader John Robert Clynes argued would combat the hurling of racial abuse. The bill sailed into law over the objections of civil liberties advocates and the concerns of some Labour MPs.

And indeed, the law was used by authorities to undermine the BUF and keep Blackshirts off the streets. It would be invoked repeatedly over the next few decades against other racist groups, particularly during their resurgence in the 1970s.

But the Public Order Act far outlived the peak of its intended targets’ activity. With British fascism receding permanently from its Depression-era heights, the law’s powers were turned against the opposite side of the political spectrum — particularly its Section Five. As law professors Keith Ewing and Conor Geraty later wrote, “the subsequent history of the use of the section was to see it being frequently directed against left-wing protest.”

For instance, the Commissioner of the Metropolitan Police ordered a three-month ban on protest in the St Pancras borough during the 1960 Rent Strike, which saw thousands of tenants resist dramatic rent increases and evictions, leading to an eventual march on the local town hall. The local tenants association at the time called the ban “martial law,” while Labour — which had facilitated the original passage of the law now being used to silence the renters — said it was “appalled by the undemocratic action.”

The St Pancras Rent Strike was an early, high-profile use of the Public Order Act, but there would be countless instances in the following decades, including:

  • The charging of  seven men in 1961 under the law’s Section Five for protesting the Western-backed assassination of Patrice Lumumba, the first elected leader of the Democratic Republic of the Congo.
  • The Metropolitan Police’s September 1961 ban of a planned march for nuclear disarmament in central London. (Twelve thousand people ignored the order, of whom nearly one thousand were arrested).
  • The charging of forty-two people for participating in a demonstration at the Greek embassy in London to protest that country’s 1967 military coup. 
  • The charging of six anti-segregation demonstrators in Oxford the same year. 
  • The charging of an anti-apartheid demonstrator for running onto the pitch during Wimbledon in 1972. 
  • The arrest of ten journalists who were picketing newspaper offices following a layoff of two hundred employees. 
  • The charging of demonstrators protesting a visit by Indian prime minister Indira Gandhi, who had recently thrown thousands of her political opponents in prison. 
  • The charging of members of a pro-IRA communist group, who had been protesting police harassment against them when police suddenly attacked them.

Perhaps the most widespread use of the law to punish non-fascist protesters came during the 1984–86 miners strike, when the Thatcher government launched an unprecedented crackdown on striking workers, arresting and trying thousands of them. “Never before in this century has the coercive power of the state been used on such a massive scale against a clearly identified group of individuals, except in Northern Ireland against the nationalist community,” wrote sociologists Janie Percy-Smith and Paddy Hillyard in a 1985 study.

According to their analysis of Home Office figures, 4,107 of those charged (39 percent) were charged under the Public Order Act’s Section Five, with only 32.4 percent acquitted, a figure at the low end among the various charges. Evidence suggested that the Section Five charges were “frequently arbitrary, bearing no resemblance to the actual behavior of the arrested person,” they noted.

It’s a vivid example of the way measures meant to combat otherwise legal but reprehensible speech will almost inevitably be misused by authorities. But it’s not limited to the United Kingdom.

The Brown Scare

No law similar to the Public Order Act was ever passed in the US, due to the First Amendment’s uniquely robust protections for speech. But the US, too, witnessed a similar scenario in which tactics initially used against fascists were later turned against those who initially had cheered those tactics on.

The so-called “Brown Scare” of the 1930s is little remembered today, but historians credit it with helping to institutionalize sedition prosecutions and entrench the national security state, both of which would in due course be turned against the Left.

The government had targeted radicals prior to the 1930s of course, most prominently during the Red Scare of the 1920s, when it deported hundreds and arrested thousands. And even the Brown Scare itself was accompanied simultaneously by the suppression of left-wing radicals. Yet fear of fascism played an important role in developments that would prove perilous for the Left.

As in Britain, the Left itself had played a central role in fomenting panic about the (quite real) fascist threat in the first place. Left-wing writers published dramatic exposés that played up the influence and scale of fascist subversion, and speculation abounded about a domestic “fifth column,” with journalist George Britt claiming that its ranks numbered as many as one million.

Liberal columnist and New Deal supporter Max Lerner called for a government board of experts that would “monitor” content and “ban the material that is poisonous and spurious.” The Friends of Democracy, an “anti-totalitarian propaganda agency” that delivered a regular bulletin to around eleven thousand subscribers and counted John Dewey and Thomas Mann among its members, called on its followers to urge the department of justice to investigate members of the far Right. Its founder, L. M. Birkhead asked the federal government to officially observe the isolationist America First Committee, which he viewed as a “Nazi front.” (In 1950, Birkhead would urge the DoJ to prosecute a right-wing columnist under the Smith Act over his criticism of US involvement in Korea).

It was for the objective of rooting out homegrown fascism in the 1930s that J. Edgar Hoover was granted the powers for which he would later become notorious. Franklin Roosevelt, keen to combat domestic fascism, authorized the indictment and prosecution of members of the far right and the surveillance of pro-Nazi groups (and later, communists). Historian Leo P. Ribuffo has called Roosevelt’s decision to marshal the FBI and Hoover against the the far Right “the most consequential decision of the Brown scare.” It brought the Bureau out of what journalist Sanford Ungar called the “benign obscurity” of the preceding decade, and reversed a (not quite fully adhered to) 1924 ban on the Bureau’s spying, increasing the agency’s power while shifting it back in the direction of political surveillance.

Hoover ordered the Bureau to establish a “broad picture” of subversion based on Roosevelt’s directive. Agents compiled dossiers on at least 100,000 people, and by the end of the decade Hoover had become Roosevelt’s go-to investigator, elevating him to the position of notorious power he would occupy until his dying day.

It was a similar story with the infamous House Un-American Activities Committee (HUAC). While HUAC had a number of forerunners prior to the mid-1930s, one of the key “fathers” of the committee in its modern form was Rep. Samuel Dickstein, a New Deal liberal from New York.

Alarmed by the rise of the Nazis, Dickstein urged passage of House Resolution 198 in March 1934, which tasked a special committee with investigating “the extent, character, and objects of Nazi propaganda activities in the United States,” as well as other forms of foreign “subversive propaganda.” Though the lion’s share of its work was aimed at domestic fascists, the McCormack-Dickstein Committee, as it came to be known, also looked at suspected communist activity. (It would later emerge that around this time, Dickstein began furnishing the Soviet NKVD with information about fascists in return for money, though in practice it was more of a shakedown than actual espionage.)

Dickstein was relentless in hyping the threat and size of homegrown fascism. He began claiming to possess a list of the names of fascist spies, whose length was constantly changing, and he charged specific people, businesses, and organizations with being fascist sympathizers on the House floor — leading six of those he named to submit signed affidavits refuting the accusations. Dickstein replied that “if out of these hundreds of names that I have buttonholed as Fascists and Nazis, or whatever I have called them, only six filed a protest, I think I have done a pretty good job.” Joe McCarthy was no doubt paying attention.

In May 1938, at Dickstein’s urging and with the support of Congressional liberals eager to investigate Nazi supporters, the special committee was re-chartered, albeit with a slight face-lift. Its mission — to investigate “un-American propaganda activities” — was now broader, and despite Dickstein’s key role in encouraging its re-formation, he wasn’t included. It would be chaired instead by Martin Dies, a conservative, anti-immigrant Southern Democrat who opposed the New Deal.

Under Dies, the committee turned its focus almost entirely to communism rather than fascism, with the conscious intent of undermining the New Deal and the burgeoning labor movement. According to Ted Morgan, it became “the first congressional committee to take full advantage of its power to punish with subpoenas and contempt citations, and its ability to harm through insinuation and publicity.” Contempt citations, for instance, could lead to jail time. It was this version of the committee that eventually morphed into HUAC and would run rampant throughout the 1950s.

Likewise, Congressional liberals supported the Smith Act of 1940, also known as the Alien Registration Act, which made it a crime to advocate the overthrow of the US government, or be part of a group that did. Dickstein believed it could be used against the far right. The first prosecutions under the law, however, ended up being against twenty-three members of a Minnesota branch of the Socialist Workers’ Party.

But the most high profile pre-Cold War case under the Smith Act didn’t involve the Left. Rather, it was directed at thirty alleged Nazi sympathizers in what would become the largest sedition trial in US history. The case, known as United States vs. McWilliams, saw vague, unconvincing charges of conspiracy and weak evidence mobilized against political enemies, in this case, a collection of right-wing antisemites. It quickly devolved into a farce, and the charges were eventually dismissed in 1946.

Apart from a few exceptions, the Left either stayed silent or cheered the prosecutors. Prominent left-wing figures like George Seldes and Michael Sayers supported the case, and the Daily Worker urged prosecutors to go further. In the New Republic, Heinz Eulau wrote that the case would be “one of the most sensational, but salutary, trials in the history of American civil liberties.” The ACLU declined to get involved, over the vehement objections of its executive director.

Despite its failure, the case lived on as a model for future prosecutions of communists during the Red Scare. “Despite fading public recall,” wrote sociologists Gary Alan Fine and Terence McDonnell, “the memory of the trial as a ‘dry run’ had not faded at the Department of Justice between 1946, when the case was finally dismissed, and 1948 when the Dennis case charged leaders of the Communist Party with sedition under the same law and using similar forms of evidence, and in that case led to convictions and imprisonment.”

The Real Losers

Well-meaning laws that vest the authorities with the power to cleanse public discourse of speech we don’t care for have a way of coming back to bite us. Hate speech laws around the world are used to criminalize legitimate dissent and criticism. Anti-fake news measures have in many cases silenced marginal voices, including even those combating bigotry.

And more often than not, the voices silenced end up being those on the Left. It figures — after all, left-wing viewpoints and activism tend to be anti-authority and challenge deep-seated power structures, making them a clear target for repression.

Fascism and bigotry are ugly, violent, and at their worst, murderous. But vesting authorities with more power to suppress these movements today all but guarantees they’ll be used against the Left tomorrow.