The Paradox of Tolerance

The Paradox of Tolerance

A society that tolerates everything will tolerate its own destruction

Three voices meet at an unnamed café, sometime after midnight. One is a historian who has spent years in archives. One is a civil liberties lawyer who has defended people she despises. One is a political theorist who has grown tired of theory. They've been drinking. The conversation has already been going for hours.

I. The Ghost in the Room

THE HISTORIAN: Okay, but here's what kills me. Everyone shares that little comic strip about Popper's paradox online—you know the one—and they treat it like some kind of trump card. “See? Even the great philosopher says we should shut these people down.” But they never read the actual footnote.

THE LAWYER: Footnote?

THE HISTORIAN: It's literally a footnote. The whole paradox of tolerance comes from a footnote in chapter seven of The Open Society and Its Enemies, published in 1945. And yes, Popper writes that “unlimited tolerance must lead to the disappearance of tolerance”—that if you extend unlimited tolerance to the intolerant, “the tolerant will be destroyed, and tolerance with them.”ⁱ Everyone quotes that part. But then he says something that nobody bothers to read.

THE THEORIST: The rational argument clause.

THE HISTORIAN: Exactly. He says—and I'm quoting from memory here—“I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be unwise.”ⁱⁱ

THE LAWYER: So Popper's actual threshold—

THE HISTORIAN: Is fists and pistols. His words. Actual violence. Not ideas you find repugnant. Not rhetoric you find dangerous. The moment they abandon reason and “teach their followers to answer arguments by the use of their fists or pistols.” That's the line.

THE THEORIST: And that line used to seem so clear.

(A long pause. Someone signals for another drink.)

II. The Auditorium

THE HISTORIAN: Let me tell you about a night in Chicago. February 1946. A suspended Catholic priest named Arthur Terminiello—a real piece of work, raving antisemite—is inside an auditorium giving a speech to about eight hundred sympathizers. And outside, there are a thousand furious counter-protesters. They're throwing bricks through the windows. Stink bombs. Ice picks. The doors are being battered in. The police are standing there, paralyzed, trying to hold a line between the fascist demagogue inside and the mob outside.

THE LAWYER: Terminiello v. Chicago.

THE HISTORIAN: You know it.

THE LAWYER: Of course I know it. The Supreme Court ruled 5-4 that his speech was protected. That free speech is designed to “invite dispute.”

THE HISTORIAN: And the dissent—

THE LAWYER: Robert Jackson. Twenty-four pages of barely contained fury.

THE THEORIST: Tell me about Jackson. I know the case, but tell me about the man.

THE HISTORIAN: Jackson had just come back from Nuremberg. He'd taken a leave from the Supreme Court to serve as Chief U.S. Prosecutor at the trials. For months, he sat across from the architects of the Holocaust—Göring, Ribbentrop, Streicher—and he had to methodically prove how they used the Weimar Republic's own democratic freedoms to legally murder a democracy. And then he comes home to America, and the very first big free speech case that lands on his desk is a fascist demagogue hiding behind the First Amendment while a riot rages outside.

THE THEORIST: That must have felt like a nightmare recurring.

THE HISTORIAN: He wrote one of the most famous lines in American jurisprudence: “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”ⁱⁱⁱ

THE LAWYER: And here's the beautiful, maddening twist. That phrase—“the Constitution is not a suicide pact”—was originally used to restrict civil liberties. Jackson deployed it to say: we should be able to shut this man up. But by the 1960s, liberal justices like Arthur Goldberg flipped it completely. They argued that abandoning our constitutional values in the name of security—that's the actual suicide pact.

THE THEORIST: So the same sentence becomes a weapon for both sides.

THE LAWYER: Welcome to law.

III. The Enemies of Liberty

THE THEORIST: But can we step back from America for a minute? Because this problem is much older than the First Amendment. During the French Revolution, Louis Antoine de Saint-Just declared: “Pas de liberté pour les ennemis de la liberté.” No liberty for the enemies of liberty.

THE HISTORIAN: And then the guillotine.

THE THEORIST: And then the guillotine. And the Terror. And the Committee of Public Safety that was anything but safe. That's the horror at the bottom of this paradox. Every time someone draws a line and says “we must be intolerant of intolerance,” they're picking up a blade that can cut both ways. Saint-Just is the cautionary tale. You start by defending liberty and you end by decapitating it.

THE LAWYER: So what's the alternative? Let the intolerant win?

THE THEORIST: No. The alternative is to be honest about what you're doing when you draw that line. To feel the weight of it. Not to draw it with glee.

THE HISTORIAN: Goebbels understood this better than anyone. He reportedly said: “This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.”^iv And he was laughing. He was laughing at us.

(Silence at the table.)

THE LAWYER: That's the one that keeps me up at night. Not the philosophical abstraction. The laughter.

IV. Where the Line Moves

THE THEORIST: Okay, so let's get into the part where we fight. Because everything we've said so far, we basically agree on. The question is: where is the line now?

THE HISTORIAN: Yes.

THE THEORIST: Popper said fists and pistols. But modern theorists—serious ones, not just Twitter polemicists—argue that certain forms of speech are violence. Stochastic terrorism. You don't have to throw the punch yourself if you can radicalize ten thousand people, one of whom will. The speech is the fist.

THE LAWYER: And if you accept that framing, then Popper's threshold is crossed the moment certain words are spoken. Which means—

THE THEORIST: Which means the space for “rational argument” effectively vanishes. If speech equals violence, there's nothing to tolerate.

THE LAWYER: But I've spent twenty years in courtrooms, and I'll tell you what terrifies me about that move. If we redefine speech as violence, then the question isn't whether to draw a line. It's who gets to hold the pen. And in my experience, the pen ends up in the hands of whoever has power. Not whoever has moral clarity. Power.

THE THEORIST: That's what Marcuse would say is naive.

THE LAWYER: Tell me.

THE THEORIST: Herbert Marcuse, 1965. The essay “Repressive Tolerance.” His argument was that in a society saturated by mass media and corporate power, “neutral” tolerance is a farce. It just reinforces the dominant ideology. He wrote about the “systematic moronization of children and adults alike by publicity and propaganda.”^v And his conclusion was breathtaking in its honesty—or its arrogance, depending on your view. He said: “Liberating tolerance, then, would mean intolerance against movements from the Right and toleration of movements from the Left.”^vi

THE LAWYER: He just said that? Out loud?

THE THEORIST: In print. At Brandeis. And you know what? I almost respect the honesty. Most people who believe this won't say it so plainly.

THE HISTORIAN: It's funny—well, not funny. Marcuse is having a revival right now, but not in the way he'd have wanted. Right-wing intellectuals like Christopher Rufo cite “Repressive Tolerance” as the literal blueprint for everything they call “wokeism.” They say: see, this is the playbook. Tolerate the Left, suppress the Right.

THE THEORIST: And they're not entirely wrong about the intellectual genealogy, even if their conclusions are self-serving.

THE LAWYER: But Marcuse's argument has a fatal flaw. Who decides what's Left and what's Right? Who decides what's “liberating”? In 1965, maybe the categories seemed obvious. Now?

THE THEORIST: Now nothing is obvious.

V. The Living Experiment

THE HISTORIAN: Can I bring us to Germany? Because Germany is running this experiment right now, in real time, and the results are… instructive.

THE LAWYER: The AfD.

THE HISTORIAN: The AfD. The Alternative for Germany party has surged in popularity. And Germany, because of its history—because it lived through the thing the rest of us only theorize about—built what Karl Loewenstein called “militant democracy” directly into its constitution.^vii Loewenstein was a German political scientist who fled the Nazis in the 1930s. In 1937, he published “Militant Democracy and Fundamental Rights,” arguing that democracies must be willing to use undemocratic means—like banning extremist parties—to survive.

THE THEORIST: The eternal question. Can you save a village by burning it?

THE HISTORIAN: Germany's Basic Law includes Article 18, which allows the state to strip the political rights of individuals who abuse democratic freedoms to undermine democracy. There are current, active debates about invoking it against AfD leaders like Björn Höcke, or banning the party outright.

THE LAWYER: And every time they discuss it, they have to confront the irony. Using state power to ban a party that millions of people voted for—in the name of protecting democracy. It sounds like a contradiction. It is a contradiction. That doesn't mean it's wrong.

THE THEORIST: Or it means it's tragically right. Rawls was useful here, actually. In A Theory of Justice, 1971, Section 35—he addresses this directly. He says an intolerant sect has no right to complain about being suppressed, since they themselves violate the principle of equal liberty. But—and this is the crucial “but”—society should only restrict their freedom when “the tolerant sincerely and with reason believe that their own security and that of the institutions of liberty are in danger.”^viii If the constitutional republic is secure, you let them speak.

THE LAWYER: So the question is always: how secure are we? How close is the danger?

THE THEORIST: And nobody ever agrees on the answer until it's too late.

VI. The Algorithm

THE HISTORIAN: I want to bring up something that Marcuse couldn't have imagined, even in his darkest moods. In 1965, he was worried about television and mass advertising—the “systematic moronization.” But what we have now—

THE THEORIST: The algorithm.

THE HISTORIAN: The algorithm doesn't tolerate or not tolerate. It doesn't have a position. It simply amplifies whatever generates engagement. And what generates engagement is outrage, fear, and tribal fury. So the infrastructure of our public square has a built-in bias toward exactly the kind of discourse that makes Popper's “rational argument” impossible.

THE LAWYER: Look at what happened with Twitter after Elon Musk bought it. He framed the whole acquisition as a free-speech absolutist project. No bans. Let everything in. And the result? An exodus of advertisers, a surge in extreme rhetoric, legal battles with the EU and Brazil. It became the most visible experiment in whether “rational argument” can actually keep the intolerant in check.^ix

THE THEORIST: And the results suggest…

THE LAWYER: The results suggest it can't. Or at least, it can't at scale. Maybe in a room. Maybe at a table like this one. But not in a system optimized for engagement at the cost of everything else.

THE THEORIST: Which means Popper's model—tolerate everything until they reach for the fists—was designed for a world where rational discourse was at least possible. What happens when the infrastructure of communication makes it structurally impossible?

THE HISTORIAN: Then you're in Marcuse's world. Whether you like it or not.

(Someone sets down a glass too hard. The table goes quiet for a long time.)

VII. What I Actually Think

THE LAWYER: Can I say something that I don't usually say?

THE THEORIST: Please.

THE LAWYER: I have defended people whose ideas I find revolting. Genuinely, stomach-turningly revolting. I have argued in court that they have the right to say what they said. And I've won some of those cases. And every time I win, I feel two things simultaneously. Pride that the system held. And terror that I helped something terrible survive.

THE HISTORIAN: That's the paradox living in a single nervous system.

THE LAWYER: It is. And I don't resolve it. I carry it. That's what I think most people don't understand about this problem. They want a solution. Draw the line here. Ban this, permit that. But the paradox of tolerance isn't a puzzle to be solved. It's a tension to be inhabited. The moment you think you've solved it—the moment you feel comfortable with your answer—you've probably become the thing you were trying to prevent.

THE THEORIST: Saint-Just was very comfortable with his answer.

THE LAWYER: And he lost his head to the same blade he sharpened.

THE HISTORIAN: Literally.

THE THEORIST: So where does that leave us? In practice. Not in theory. On a Tuesday morning when someone is spreading venom online and a mob is forming and the authorities are asking whether to intervene.

THE LAWYER: It leaves us with judgment. With the awful, fallible, human responsibility of judgment. Not principles alone—principles are necessary but not sufficient. Not algorithms. Not formulas. The willingness to look at each situation and ask: Is rational argument still possible here? Are the institutions still holding? Is this someone I disagree with, or someone who wants to destroy the conditions that allow disagreement to exist?

THE HISTORIAN: And the willingness to be wrong.

THE LAWYER: God, yes. The willingness to be wrong. Because you will be. Sometimes you'll tolerate too much. Sometimes you'll tolerate too little. The only thing worse than either mistake is pretending you've found a formula that eliminates the possibility of error.

THE THEORIST: Rawls was right, then. You act when you “sincerely and with reason” believe the institutions of liberty are in genuine danger. But that sincerity—that “with reason”—requires you to interrogate your own motives as ruthlessly as you interrogate the threat.

THE HISTORIAN: Jackson knew. He'd seen the worst of it, the machinery of genocide, the constitutional process that led to the gas chambers. He came back to America and he said: don't be naïve. Don't be doctrinaire. Be wise. Be practical. And be afraid. The fear is appropriate.

THE LAWYER: I think the fear might be the most important part. Not as paralysis. As compass. The moment you stop being afraid of your own power to suppress, you've become dangerous.

THE THEORIST: So tolerance isn't a value. It's a practice. A vigilant, exhausting, never-finished practice.

THE LAWYER: With no guarantee of success.

THE HISTORIAN: Has anything in history come with a guarantee of success?

(The café is closing. Chairs are being stacked on tables around them. Nobody moves to leave.)

THE THEORIST: One more thought. I keep coming back to Goebbels laughing. The idea that democracy's openness is a joke. And I think the only real answer to that laughter is to refuse the premise. Democracy isn't a suicide pact, and it isn't a joke. It's a wager. A bet that enough people, enough of the time, will choose to defend the conditions of their own freedom. Not perfectly. Not without cost. But enough.

THE LAWYER: And if the bet fails?

THE THEORIST: Then at least it failed honestly. Which is more than tyranny can say.

(They sit with that for a while. Then someone pays the bill, and they walk out into whatever kind of night awaits.)

Sources & Further Reading

1. i.Karl Popper, The Open Society and Its Enemies (1945), Vol. 1, Ch. 7, Note 4
2. ii.Popper's full footnote on rational argument and suppression thresholds
3. iii.Justice Robert Jackson's dissent in Terminiello v. Chicago (1949)
4. iv.Goebbels on democracy's self-destruction — historical context
5. v.Herbert Marcuse, “Repressive Tolerance” (1965)
6. vi.Marcuse's call for asymmetric tolerance between Left and Right
7. vii.Karl Loewenstein, “Militant Democracy and Fundamental Rights” (1937)
8. viii.John Rawls, A Theory of Justice (1971), Section 35
9. ix.Free speech absolutism and platform governance in the social media era