After ten years of data collection and two years of writing, I’m very close to sending off my completed book manuscript on free speech and democratic backsliding worldwide. The book covers a lot of ground, and one reason I launched this newsletter is to share some of its key arguments in smaller chunks.
My focus today is the presence (and then absence) of so-called militant democracy arguments in U.S. First Amendment law. As I mention in the book’s preface, my argument here draws heavily on an unpublished working paper co-authored with Nathan Carrington, Claire Sigsworth, and Stephan Stohler.
Militant democracy is the theory, associated most closely with post-World War II Europe, that democracies should, when necessary, engage in aggressive self-defense by banning anti-system parties and restricting anti-system speech. The term was coined by Karl Loewenstein in the 1930s, and from the beginning, its advocates have emphasized Joseph Goebbels’s boast that “it will always remain one of the best jokes of democracy that it provided its mortal enemies itself with the means through which it was annihilated.” Goebbels, of course, was Hitler’s Minister of Propaganda, and he helped lead the Nazi Party to power—using the free speech and free association available to them in Weimar Germany to great effect, and then abolishing those freedoms for everyone else.
Ever since, judges in many democracies have drawn on explicit or implicit militant democracy provisions in domestic constitutions and international human rights treaties to authorize state restrictions on extremist speech. I’ve previously written about the influence of such arguments on the Brazilian Supreme Court, and in a future post, I’ll have more to say about their influence on the European Court of Human Rights as well.
But for today, I’m focused on the United States.
Militant democracy principles are almost entirely absent from contemporary First Amendment law. U.S. courts face no shortage of disputes involving hate speech, incitement of political violence, election disinformation, or other speech that threatens core norms and institutions of democracy. They sometimes protect such speech in ways that judges in most other democracies likely would not. But in many cases, they find grounds for allowing state regulation to some degree. They just never advance militant democracy arguments when doing so.
But this was not always so.
In the mid-twentieth century, U.S. Supreme Court justices regularly advanced militant democracy arguments in support of state regulation of extremist speech.
Justice Robert Jackson elaborated these arguments at greatest length. Following World War II, Jackson took a leave from the Court to serve as chief Allied prosecutor at the Nazi war crimes tribunal in Nuremberg. This experience left him closely attuned to the role of extremist speech in the Nazi Party’s rise to power in Weimar Germany. Consider his dissenting opinion in Terminiello v. Chicago (1949).
There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it as did Goebbels when he said: ‘When democracy granted democratic methods for us in times of opposition, this [Nazi seizure of power] was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in times of (our) opposition.’ 1 Nazi Conspiracy & Aggression (GPO 1946) 202, Docs. 2500—PS, 2412—PS.
Jackson wrote this reference to Goebbels in a case involving a 1946 address to a Chicago crowd by Arthur Terminiello, a suspended Catholic priest who traveled the country delivering speeches filled with anti-Communist and antisemitic themes. (He was apparently known as the “Father Coughlin of the South.”) Terminiello’s speech was interrupted by violent counter-protesters, and he was subsequently convicted of breach of the peace. The Supreme Court reversed his conviction, but Justice Jackson dissented, emphasizing the fragility of democracy in the face of extremist mobs on the left and the right.
On Jackson’s account, the right-wing attendees at Terminiello’s speech, along with the left-wing protesters outside the hall, represented “a local manifestation of a worldwide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe.” As he saw it, extremists on both the left and the right were intentionally provoking mob violence and disorder in the hopes of seizing power. In his most famous line, he suggested that an overly expansive reading of the First Amendment might turn the Bill of Rights into “a suicide pact.”
The following year, concurring in American Communications Association v. Douds (1950), Jackson argued that Congress was free to require that labor unions purge Communists from their leadership ranks: If the CPUSA were “just another more radical political party, … this legislation would be unconstitutional,” but on Jackson’s account, Congress had rationally concluded that, “behind its political party facade, the Communist Party is a conspiratorial and revolutionary junta, organized to reach ends and to use methods which are incompatible with our constitutional system.” Jackson devoted eight full pages to detailing the key characteristics of the Communist Party that justified denying it democratic freedoms possessed by other parties, including that it seeks “to seize powers of government by and for a minority,” “is dominated and controlled by a foreign government,” and deploys “violent and undemocratic means.”
Two years later, in a case involving what we would now call racist hate speech (but which Illinois referred to at the time as “group libel”), Justice Felix Frankfurter sounded similar themes. Writing for the Court in Beauharnais v. Illinois (1952), Frankfurter held that the state was free to prosecute the leader of a white supremacist organization for circulating a racist leaflet. Frankfurter’s opinion reviewed Illinois’s lengthy history of racially motivated violence, from the 1837 murder of abolitionist editor Elijah Lovejoy to the 1919 Chicago race riot and beyond. In a series of footnotes, he cited sociologist David Riesman on the dangers posed by “systematic manipulation of [public] opinion by the use of calculated falsehood and vilification”; a classic work of urban sociology on the sharp increase in both foreign-born and African American populations in Chicago from 1900 to 1920; and most importantly for my purposes, Loewenstein’s work on legislative efforts to combat political extremism in European democracies.
Drawing on this array of sources, Frankfurter endorsed the Illinois legislature’s concern with maintaining racial peace in the increasingly multicultural city of Chicago, though he wondered aloud whether censorship would effectively address the deep-rooted problem of racial and religious violence.
Jackson, Frankfurter, and other mid-century justices regularly observed that the survival of U.S. democracy was not guaranteed and hence that elected legislatures were free to adopt aggressive measures in self-defense. For example, writing for the Court in Communist Party of the United States v. Subversive Activities Control Board (1961), Frankfurter noted congressional findings “that there exists a world Communist movement, foreign controlled, whose purpose it is by whatever means necessary to establish Communist totalitarian dictatorship … throughout the world, and which has already succeeded in supplanting governments in other countries.” Congress found further that the Soviet government had established “action organizations [that] employ methods of infiltration and secretive and coercive tactics” in the United States. Where the public interest at stake is a “threat … not only to existing government in the United States, but to the United States as a sovereign, independent nation,” Frankfurter insisted that the Court defer to congressional efforts to “accomodate the exigencies of self-preservation and the values of liberty.”
These arguments disappeared with the end of the Warren Court, at least in part because the threat of Communist toppling of the U.S. government receded. Which raises an obvious question: If the survival of U.S. democracy is again uncertain, are European-style militant democracy arguments again relevant for U.S. First Amendment law?
After all, we are living through a global democratic recession, from which the United States is by no means immune. Here’s V-Dem’s electoral democracy index. The red line is the United States; the blue line is the world population-weighted country average.
V-Dem’s Electoral Democracy Index, 1945-2025
Democratic health has not reverted to its immediate post-World War II levels, but in the United States and globally, it is trending in that direction. As such, I have been expecting a reemergence of militant democracy arguments in First Amendment law (likely in a distinctively American form, but with recognizable echoes of the post-war European tradition). I have found no evidence of this reemergence to date.
For the book manuscript, I reviewed all Rehnquist and Roberts Court decisions involving extremist speech and found no examples of European-style militant democracy argument. But I have identified only twelve such decisions, so I also reviewed all Trump-era decisions from federal appellate courts involving extremist speech. Here, I identified 77 relevant cases, featuring 56 published judicial opinions arguing against speech protection. Of those 56, I have identified exactly three that advanced recognizable militant democracy arguments, and two of those three are borderline cases.
The clearest example of militant democracy argument in support of state restrictions on extremist speech that I have identified from Trump-era courts came from Fourth Circuit Judge J. Harvie Wilkinson III. The case involved Marian Hudak’s conviction on federal hate crimes charges for two racially motivated assaults. The conviction rested in part on the basis of evidence that Hudak “kept a number of Nazi and Ku Klux Klan objects in his home and yelled racial epithets at his victims while he attacked them.” Upholding this conviction against a First Amendment challenge, Wilkinson observed that:
We live in a time in which racial, ethnic, and religious antagonisms are on the march. Hudak's assaults of his fellow citizens were all too emblematic of this trend. Their harm lay not only in the injuries inflicted on two men and their property, but in the lost safety and dignity of all members of the targeted groups. In Hudak's balled fists and combat boots lay a message: you are not welcome here.
In Hudak's arrest and conviction, however, we find a different message. Blackstone reminds us that ‘among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.’ Congress acted on this principle by passing federal laws ‘directed at crimes of racial violence.’ And it was in service of those laws that the jurors here convicted Hudak. In doing so, they expressed the enduring judgment of the American people that crimes of hate reflect neither who we are nor ever shall be.
Judge Wilkinson’s argument is striking in its forthright declaration that contemporary patterns of hate-motivated violence are fundamentally incompatible with the essential values of U.S. democracy. I argue in the book that this opinion reflects European-style militant democracy principles. Only time will tell whether Wilkinson’s paean against racist violence represents the leading edge of a trend. If it remains an outlier, U.S. courts are likely to maintain, for better and for worse, their unusually hostile stance toward state regulation of false, violent, and hateful speech.