Alright, so over the past few months I pretty much intentionally embroiled myself in the controversy of “go forth and punch a Nazi” with the opinion that physically assaulting someone when their actions are mere speech, and not an imminent threat of violent action, was no bueno. The most common reaction to that opinion was that statement that it was morally correct to punch a Nazi, and therefore justified, regardless of the presence or lack of an imminent threat of actual harm. In essence, the opposition to that position boiled down to “legal or illegal, it’s right to punch people who espouse such vitriolic and hateful opinions.”
I mean, I personally disagree, just because I believe violence is an appropriate response to the threat of use of actual violence, not the intangible threat of some possibility of violence in the future, and I have some issues with the position we should legitimize violence as a response to speech (when it is only speech). Rest assured, I don’t like the goddamn Nazis, I don’t like the goddamn bigots, and I’m not saying we have to discuss the validity of their positions or “hear them out.” My concerns are primarily linked to that whole “slippery slope” thing we lawyers talk about, and the belief that if we legitimize a violent reaction then we’re handing them a nail-and-barbed-wire covered bat to come back with when we speak out against them louder than they speak out against us.
Plus I think that when you punch these fuckers, all you really do is give them more goddamn attention and air time and spur a national fucking debate about “Who the real Nazi is, hmmmm?” God do I fucking hate that fucking trope.
But that’s not the conversation I want to have for this week’s Film Friday, because the majority of people with two fucking brain cells to rub together all agree on the basic premise that Nazis, white supremacists, the alt-right, cue whatever feel good nickname they’ve come up with this month, are absolutely and positively shitheads who make no valuable contribution to society, whose opinions (while constitutionally protected) have no goddamn merit, and who we definitely don’t need to treat as having legitimate speech that adds anything other than disarray to the world. The conversation I want to have this week is a little more nuanced than that, and it’s the concept that something can be legally wrong, but morally right.
And I can think of no better way to illustrate this point than to talk about Schindler’s List, a movie which embodies the principle of “Legal is not always moral, nor is illegal always immoral.”
Cool, so here’s the gist of the List:
The film is a Spielberg docudrama following the life of Oskar Schindler, and it’s unflinchingly unforgiving to this man who was a member of the Nazi Party, a spy for Nazi Germany, a war profiteer, and generally an unrepentant roustabout for damn near his entire life. That is, right up until he purchases (in the loosest terms possible) a factory in Krakow, Poland to manufacture and sell goods to the Nazis during World War II. At that time, in that place, he was offered, and accepted, a large number of Jewish workers on the cheap to be essentially slave labor. The workers came first from the local ghetto and then, later, from the Plazslow concentration camp. All in all, Schindler got about 1,000 Jewish workers to his factory, at first because he could get them on the cheap and loved to make money.
As the film shows, however, that changed. Schindler came to see his Jewish workers as people, contrary to the edicts of the regime, and frequently bribed officials to keep them safe. He purchased goods on the black market to feed and clothe them, and on one occasion kissed a Jewish factory worker on the cheek during a birthday celebration for him…a crime at the time. The movie details all of this, a formerly stalwart Nazi becoming the champion and fierce protector of his workers, even at one point bringing them from Auschwitz to his new factory as the Nazis began liquidating the ghettos.
The movie ends with Schindler having a bit of a breakdown over the fact he could have done more, and a line of survivors, known as Schindlerjuden, and their children and grandchildren walking by his grave is Israel among the righteous, those who spoke out against the evil of the Third Reich and the attempted extermination of a people.
The real story of Oskar Schindler isn’t much more uplifting. Schindler spent time in jail during the war, each time for buying goods off the black market, bribing members of the SS or Gestapo, or that famed “kiss the Jewish girl” moment. Each one brought him time in jail before his contacts would secure his release, and each one brought him an investigation from the Third Reich. Because his actions, the actions of showing bare humanity and decency to people in the face of unimaginable evil, were illegal. Merely treating Jews as humans had been outlawed, and Schindler deigned to defy the law.
There’s not a better fucking example of “morally right, legally wrong” than Oskar Schindler, a man who found himself a millionaire, and then systematically spent his fortune breaking the law by keeping people alive. And there’s not a better example of the duality of the law than Schindler as well.
Ostensibly, the law exists to regulate, forbid, and deter people from engaging behavior that hurts the better interests of society as a whole, and that is why lawyers such as myself tend to hold it in regard. However, we cannot deny that, like those laws that compelled Oskar Schindler to become a criminal, some laws are used not to protect but rather to oppress. The reason is the majority of people, those that are in control, have a tendency to be able to determine what the best interest of society is, and when, as with the Nazis, they tend to enforce their ideology through fear and violence to suppress the opposition, what we end up with are laws that do not serve the interests of society and humanity, but rather laws that serve inhumanity.
I would argue those are the laws that we can say are inherently wrong: the law that exists to criminalize basic decency or humanity, that excludes or oppresses people for no rational basis other than the fact they exist. When a law criminalizes mere existence, or decriminalizes atrocities against those people, then that law is in and of itself morally incorrect and indefensible, although it may be entirely legal. In short, we can’t always count on the government to make laws that are good for society because the legislature is made up of people. When the government makes a bad law, an oppressive or inhuman law, it is completely possible to act illegally but still in a morally (and humanly) correct manner.
In short: “Illegal doesn’t always mean bad, fuckwit.”
At the same time, some laws, like the freedom of speech and the prohibition on violence against speakers merely for speaking, are coming into a gray area. That’s understandable with the fear that is going around, but it’s also frightening to think that the argument that allows people to justify breaking the law in times where the law is used to oppress a specific group (As Itzhak Stern puts it in the movie in reference to the List itself “an absolute good”) is being used to justify breaking the law when the law serves as a shield not just for the person attacked, but also for the attacker. The law does not say “Don’t punch Nazis unless they threaten imminent harm,” it says “don’t punch anyone unless they threaten imminent harm,” and it’s not being applied only to protect Nazis, but rather everyone. The law, if applied as written, protects the protestor from the Nazi as much as it protects the Nazi from the protestor. That’s where we get iffy, because nobody likes Nazis, but if a law, in theory and in application, provides protection both to the good and the evil, does that fact alone make it a bad law?
Some people say yes. I worry about that. I worry because I can see the reversal of that being used as the justification for the deprivation of rights to those we actually want the law to protect. I worry that the normalization of violent silencing of any party can circle back around to bite us in the ass, and the codification of that position in law almost certainly will circle back around to do so. Because as Nazi Germany shows, the law can be used to justify oppression and murder if the regime so wishes. The more we weaken a “middle of the road protection” of the law to favor one party or another, I worry that it becomes less of a shield for society and more likely to at some point be used as a tool of oppression against the same people we are weakening the law to protect.
But look, I’m not much on this political shit, so here’s where I’ll plant my flag on this topic:
As an attorney, and as a believer in the strength of our justice system, I cannot advocate for people breaking laws that apply equally to all parties and serve to protect (ostensibly) everyone. But I will freely acknowledge that the law is not infallible, and when a law is inherently unjust or used as a means to justify the destruction of people, sometimes it is necessary for good people to break the law in order to do that which may not be legal, but is certainly right.
At the same time, that should be a last resort.