The debate surrounding Tina Fey’s “sheet caking” comedy bit demonstrates some problematic  directions that discourse may be trending.

The discussions we are having as we grapple with the proper response to increasingly visible white supremacy, which many believe is condoned by the President, are critically important.  As someone who writes and teaches First Amendment and free speech culture, I think our discourse on these topics is breaking down.  I am glad that cities and universities are removing statutes honoring Confederate soldiers.  Every one of those relics, which are rightly perceived by many as honoring slavery, should come down (although not by vandalism, but by local, democratic decision-making).  I am also glad to see citizens contending with our racist history and how that history has affected our current cultural, political, and socioeconomic climate.  However, the reaction to Tina Fey’s bit evinces the tactics of perverting our First Amendment paradigm and negating someone’s views based on her identity.  Both methods are bad for discourse.

This week, Tina Fey did a segment on Saturday Night Live about what we should do about the horror of literal Neo Nazis marching in the streets.  She claimed we should buy sheet cakes from Jewish- or black-owned businesses and shout about Paul Ryan’s cowardice, or the number of extra-legal armed militias, into the sheet cake while eating our feelings.  The Internet has launched into a discussion about whether Fey’s satire was an irresponsible encouragement for people to remain passive while white supremacists march in the streets.  Even if Tina Fey was actually mocking inaction, which is likely the correct interpretation, her mockery seemed to many to normalize or condone it.

This country is currently grappling with the best methods for handling the reality that white supremacist groups are becoming increasingly emboldened.  In Charlottesville, where a Unite the Right protester killed Heather Heyer, white supremacists came armed with guns, some citing the need for self-defense given previous violence by anti-fascists.   A not insignificant number of those white supremacists believe in actual genocide, and many use the techniques and rhetoric of Nazis.  This is rightly disturbing.  How we handle this chapter in our history is vitally important.

Tina Fey’s resignation satire was a bit confusing, and I didn’t find it particularly funny compared to her other material.  What I find more troubling, however, is the tactic, now legitimate in many circles, of claiming that her views are illegitimate because she is not directly affected by Neo Nazis.   Her privilege, many have claimed, has altered her views and her comedy.  It is easy — too easy — to dismiss someone’s views or comedic complexity based on identity.  The concept of privilege, which legitimately recognizes that background may inform views and that passivity benefits the dominant paradigm, has been taken too far.  Privilege began as an academic concept, and as it exploded into mainstream culture, it has been perverted to convert people’s guilt into silence.  It has become a cheap way to discredit people without having to engage with them.  Debates are distorted when only some people are considered capable of forming a view on a subject.  Room is required for dispassionate debates and provocative satire, and everyone is equally capable of marshaling logic or recognizing the absurdity of situations.

I am personally in direct peril of a Nazi rise to power, and I also believe that an appropriate response may be to ignore white supremacist rallies.  (I haven’t solidified any conclusions on this issue.)  Many of the Neo Nazi leaders have articulated the ethos that they do not initiate violence.  They claim that they respond with violence only when they are assaulted, or pushed out of areas where they have permits to legally march.  Part of me thinks it is best to let them prove this. That may yield more peaceful rallies, or we can see that their nonviolent stance is a fraud and their invocations of their free speech rights are pretextual, allowing for a legal way to stop their marches.  Although many seem to believe that the only reason for Tina Fey’s comedic routine was because she is unaffected by future fallout, there are other paths to coming to this view.  Presuming that identity is everything, and using that notion to shame speakers, is not helping us find the best way to handle a lamentable, horrifying situation.

Further, much of the popular response, to both Tina Fey and the Neo Nazis marching, has been to claim that their speech is unprotected by the First Amendment.  This is unequivocally incorrect.  Unlike other countries, “hate speech” is fully protected in this country.  Any documentary about prison – in which many prisoners sport swastika tattoos – should be enough to alert citizens that visible signs of hate receive the same First Amendment protection as visible signs of love.  This viewpoint neutrality, unique to our country, is based on (1) the view that we cannot trust the government to decide what is unacceptably hateful, (2) the principle that everyone is entitled to his or her views, if expressed in a way that does not directly incite imminent violence, and (3) the philosophy that democratic change is legitimate only if all of our citizens have a voice, without censorship by the government, in shaping the direction of our country.

There are interesting debates to be had about the role of guns at the white supremacist rallies.  The American Civil Liberties Union has altered its position on defending “hate groups” who carry guns.  I am torn about that choice, given ACLU’s history and role in preserving unpopular civil liberties.  What I find more troubling is the meme circulating about why we cannot respond to intolerance with tolerance.  Tolerance of intolerance, the uniquely American approach, is fundamental to our First Amendment regime.  Without tolerance all the way down, we enter into the perilous, opaque territory of deciding when ideas are too intolerant to be tolerated.  The Westboro Baptist Church can spew their venom because this country is serious that all are welcome here.  A true, broad understanding of tolerance, diversity, and pluralism requires tolerance of all ideas and all people.  Tolerance, even of intolerance, is how this country has historically assimilated immigrant populations into our culture far better than, for example, France – which attempted to ban the burqa as a symbol of intolerance.

Tolerance of intolerance is not a suicide pact.  We ban hateful conduct, and even increase penalties for hate crimes.  However, all opinions – even the ones that claim that I am a poison infecting this country – cannot be censored, and shouldn’t be limited by the heckler’s veto.  For the white supremacists:   I have no ties to Hollywood and am assuredly not a Communist, but am a law professor who loves Seinfeld and bagels and lox, so you got me there.  If any white supremacists wish to have a dialog with me before you decide to hate me, I believe we could both learn something.  True engagement is the best way forward, I believe.