In the ACLU’s long history of First Amendment advocacy, it has repeatedly defended Nazis and racists on the premise that free speech rights are indivisible: that “restricting the speech of one group or individual jeopardizes everyone’s rights because the same laws or regulations used to silence bigots can be used to silence you.”
Often that approach has been controversial in the moment, but bolstered its long-term reputation for principled advocacy on behalf of folks on all sides of national divisions.
But today, even as everyone less odious than Nazis benefits from case law protecting even the most odious and despicable people in world history, the ACLU’s successful approach is sparking intense criticism and creating deep fissures inside the organization, as The New York Times noted this week, quoting an open letter from about 200 ACLU staff members who argued that “our broader mission—which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment—continues to be undermined by our rigid stance.”
Those dissenting staffers are making a grave error.
The traditional approach of the ACLU has been clearly and repeatedly vindicated by history as advancing the larger cause of justice for people of all races, ethnicities, and religions. Its actions in Charlottesville did nothing to undermine those goals. And post-Charlottesville doubts about whether the ACLU would defend the alt-right are already leading to unintended consequences that undermine its mission.
With the best of intentions, the dissenters inside the ACLU have staked out a position that will harm disempowered racial and religious minorities if it succeeds or persists.
The Historical Record
Bygone ACLU defenses of hateful right-wing speakers have never enabled or even preceded a spike in political power for American Nazis or members of the Ku Klux Klan.
Skokie didn’t portend a descent into fascism.
But those principled defenses of speech and the precedents that they set did repeatedly lay critical groundwork that helped opponents of needless warmaking and racism.
ACLU Senior Staff Attorney Lee Rowland noted one example back during the 2016 campaign, amid calls to charge Donald Trump with incitement for violent talk at his rallies. She referenced a case that the ACLU of Ohio had litigated for a bigot years earlier.
“The Brandenburg test is named after Clarence Brandenburg, an avowed racist convicted for holding an Ohio KKK rally in the late 1960s. The Supreme Court overturned his conviction, despite the rally’s talk of ‘revengeance’ against Jews and black people, and held that ‘abstract advocacy of force’ was protected speech that did not amount to incitement,” she explained. “A few years later, in a short opinion relying entirely on Brandenburg, the Court struck down another state conviction—this time of an anti-war protester who a cop overheard yelling, ‘We’ll take the fucking streets later.’ The court again held that advocacy of generic illegal action was not incitement.”
Anti-war protesters weren’t the only disempowered minority to benefit from Brandenburg. “Perhaps the high water mark for incitement law is NAACP v. Claiborne Hardware, in which the court upheld civil-rights icon Charles Evers’s right to deliver ‘emotionally charged rhetoric’ at a 1966 rally,” she explained. “Evers was advocating that a crowd of supporters boycott racist, white-owned businesses, and during his passionate speech, he promised that ‘We’ll break the damn neck’ of anyone who broke the boycott. Citing Brandenburg once again, the court held that there was no evidence ‘that Evers authorized, ratified, or directly threatened acts of violence.’”
But for the ACLU’s successful defense of an abhorrent bigot in Brandenburg, one wonders how many more anti-war protesters and civil-rights activists would’ve been imprisoned. Thank goodness anti-racists who found it distasteful did not prevail!
Elsewhere the ACLU has noted other cases that vindicate its bygone representation of bigots:
… in the 1949 case of Terminiello v. Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-semitic speech. The precedent set in that case became the basis for the ACLU’s successful defense of civil rights demonstrators in the 1960s and ‘70s. The indivisibility principle was also illustrated in the case of neo-Nazis whose right to march in Skokie, Illinois, in 1979 was successfully defended by the ACLU. At the time, then ACLU Executive Director Aryeh Neier, whose relatives died in Hitler’s concentration camps during World War II, commented: “Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish, or assemble any place in the United States are thereby weakened.”
What Happened in Charlottesville
The ACLU has been subject to criticism for representing the organizers of the alt-right gathering in Charlottesville where a counter-protester was killed by a white supremacist. That murder was abhorrent, and a great tragedy for the loved ones of the deceased; and the ACLU is under no principled obligation to represent anyone if they believe that their real intention is to perpetrate violence; but the ACLU had no reason to anticipate that one of the alt-right protesters would run a woman down with his car.
What’s more, the effect of the Charlottesville rally was not to empower the alt-right. On the contrary, the public display of abhorrent behavior and symbols seemingly weakened it.
As I noted last month, the journalist Angela Nagle spent years on some of the most transgressive fringes of the web to write Kill All the Normies: Online Culture Wars From 4Chan and Tumblr to Trump and the Alt-Right. In an interview on Ezra Klein’s podcast and in “Goodbye Pepe,” she reported that the subculture she long observed was changed irrevocably after the parade of Nazis and killing of an anti-racist protester, because many who treated the subculture as a game, and told themselves its racism was ironic, had to confront how abhorrent and gravely serious it was.
Don’t get me wrong. The ACLU did not predict that Charlottesville would expose the alt-right as abetters of torch-carrying klansmen; force immature “shit-posters” to grapple with their complicity in deadly white supremacy; and cause millions of Americans to realize anew that the forces of bigotry are terrifyingly real and must be opposed. But those actual consequences of Charlottesville cut against the notion that the ACLU’s role in helping the event to happen somehow empowered white supremacists. Charlottesville was the biggest disaster for the alt-right in recent memory.
Unintended Consequences of Going Wobbly
The end of the New York Times article on the ACLU, its official willingness to advocate for the alt-right in the future, and dissenting opinion among some staff members ends with an ominous line that suggests an unintended consequence of the controversy:
Whatever comes of the debate inside the ACLU, leaders of the alt-right say they are looking past the civil-liberties union and seeking to forge more sympathetic legal alliances. “We do not want or need their help,” Kyle Bristow, a Michigan lawyer who identifies with the alt-right, wrote in an email, explaining that he was building a network of like-minded lawyers.
That passage is clarifying. It is a reminder that the ACLU is not in the business of creating or granting speech rights, it simply helps secure rights that others already possess. In the ACLU’s absence, there are poor clients who’d go entirely without representation; but the alt-right, which is not impoverished, will not go without representation.
And its new legal team is likely to have a very different agenda.
So the tradeoff is as follows:
- The ACLU can use its historic strategy, representing the alt-right when the First Amendment is implicated in order to secure gains that help protect everyone, at the cost of giving icky feelings to allies who feel impure due to the association.
- Or the ACLU can decline to ever represent the alt-right, winning plaudits for its purity from shortsighted progressives, at the cost of losing the ability to shape First Amendment cases in accordance with its long-term goals; and the vacuum will likely be filled by lawyers more ideologically aligned with the alt-right and its goals. It will be a bitter irony if the unintended consequence of the fissure within the ACLU is the rise of a legal network of alt-right aligned lawyers who use First Amendment litigation to gain legal expertise and raise funds that are directed to the sorts of precedents and bigoted ends they want to advance.
Safeguarding the civil liberties of the powerless requires farsightedness and a strong stomach. The structure of our legal system, where precedents are set around hard cases rather than abstract arguments, guarantees that all of our First Amendment rights will be affected by how the most abhorrent kinds of speech are treated; that all of our Fourth Amendment rights will be shaped by cases involving hugely unsympathetic criminals; that what constitutes a “cruel or unusual punishment” could turn on how willing lawyers are to advocate on behalf of a child molester, a traitor, or a terrorist.
A willingness to apply the indivisibility principle to white supremacists––as surely as to their moral cousins, like child molesters, rapists, and captured terrorists––is of a piece with this farsighted, strong-stomached comportment. Using that approach, the ACLU has achieved more for racial justice than any of its critics. It will best serve the most vulnerable among us going forward.
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