The Guardian has a new article explaining How the resurgence of white supremacy in the US sparked a war over free speech.
Late last summer, the American Civil Liberties Union faced a mounting crisis over its most celebrated cause, which many consider the lifeblood of democracy: freedom of speech. For nearly a century, the ACLU has been the standard-bearer of civil liberties in the US, second only to the government in shaping Americans’ basic rights. Although the organisation has been at the vanguard of many of the country’s most hard-fought legal battles – desegregation, reproductive rights, gay marriage – the argument among its staff last summer, over whether to continue representing white supremacists in free-speech cases, was more intense than anything the organisation had seen before.
Since free speech is one of our most important civil liberties, and applies to all people, even those you disagree with, it would seem that if the ACLU doesn’t stand for free speech as a universal right, they might need to change their name.
After Donald Trump was elected, the ACLU had positioned itself as a leader of what it calls “the resistance”, suing the administration over voting restrictions, illegal detentions, and the Muslim travel ban. It recruited celebrities such as Tom Hanks, Mahershala Ali and Tina Fey to raise money and reassure worried Americans. “The ACLU has had your back for almost a hundred years,” one ad declared. “We got this.” In the nine months after the election, the organisation’s paying membership quadrupled to more than 1.5 million people, and it received more than $80m in donations.
Fighting government restrictions on civil rights like voting and freedom is exactly what the ACLU should be standing for. I wasn’t aware that the rights of non Americans to emigrate was one of their mandates.
Then, on 10 August, the organisation’s Virginia chapter sued to prevent the city of Charlottesville from relocating a white-nationalist rally to a safer location outside the city centre. The ACLU claimed the move would violate the organiser’s constitutional rights to freedom of speech and public assembly. Two days later, when a white supremacist injured 19 people and killed the anti-racist protester Heather Heyer in a car attack during the rally, many people, including Virginia’s governor, blamed the ACLU. One response in particular became a symbol of the larger backlash: “I can’t facilitate Nazis murdering people,” an ACLU of Virginia board member declared, in a series of viral tweets announcing his resignation.
Well, the move would have violated their right to freedom of speech and public assembly, which is what the ACLU should be standing for. I don’t see how the ACLU is responsible for the actions of a bad actor. If a board member wants to resign over this, that’s their right.
Since its founding in 1920, the ACLU has helped make the US home to arguably the most freewheeling, unregulated public discourse in the world. And it has done this partly by defending, in the courts of law and public opinion, the speech rights of racists and fascists. The ACLU asserts that laws guaranteeing freedom of speech must embrace everybody (think the Ku Klux Klan and neo-Nazis) if they’re going to protect anybody (think organised labour, anti-war protesters and Black Lives Matter). “The same laws or regulations used to silence bigots can be used to silence you,” its website explains.
Over the course of the 20th century, the ACLU largely won the country over to its vision, making freedom of speech one of the most widely accepted principles in US political life. A 2015 report from Pew Research Center found that Americans are more supportive of free expression than any other people in the world. By some measures, there’s more accord in the US about protecting speech than about protecting the air we breathe.
And this is one of the most admirable things about the country, and I believe has been one of its greatest strengths.
But the rise of the far right has given new weight to longstanding questions about the wisdom of the ACLU’s approach to free speech – and, by extension, America’s. Critics say the ACLU’s insistence on defending some extremist speech impedes the long fight for civil rights, hobbling the pursuit of social and political equality. The legal philosopher Jeremy Waldron told me that the US has “polluted” its civic environment with the “slow-acting poison of hate”. One Yale law scholar has even recently wondered if free speech could “wreck the American experiment”.
Waldron seems fairly reasonable. The problem with banning hate speech is one of definition. No matter where you start, you have one foot on the slippery slope. Few people disagree that direct incitement to violence should not be protected. Beware taking the next step, or you may find yourself treading the same path to the authoritarian police surveillance state that the UK is becoming.
In the face of its critics, the ACLU – which employs about 1,800 staff, spread between its national office and 53 semi-autonomous affiliate offices across the country – has always soldiered on with its support for the right to say even the most appalling things. But Charlottesville was different. Inside the ACLU, the violence propelled the fiercest debate over racial justice and free speech that the organisation has ever experienced. By the end of August, hundreds of its own staff had signed a letter to the national executive director, Anthony Romero, claiming that the organisation’s mission of advancing justice and civil liberties was being “undermined by our rigid stance” on defending white supremacists.
And yet to ignore the civil liberties of these Americans, even though you disagree with their opinions, would undermine the organizations’s mission.
According to a staff member who dissents from the organisation’s traditional position, the debate represents “a tipping-point moment” for the ACLU. “Staff of colour have been feeling a lot of things,” an ACLU lawyer in California told me last year. “I’m working at this organisation that is protecting groups that believe that I shouldn’t exist, that question the very existence of people of my race. What does that mean personally, and what does that mean for the organisation as a whole, and its own structural racism?”
The ACLU exists to support the rights of all Americans, even the ones you don’t like. How can you claim to care about universal rights if there are a whole class of people that you believe have no right to exist?
For many supporters, however, the debate constituted something of a mutiny against the soul of the organisation. On the same day that the staff letter to Romero began circulating, nine senior members of the organisation wrote to the board condemning the possibility that the ACLU might “reverse its historic role” in defending freedom of speech. Every major news outlet in the US reported on the conflict. Journalists from the left and right who cover the free-speech beat, including Glenn Greenwald at the Intercept and Conor Friedersdorf at the Atlantic, argued that curtailing white-supremacist speech would ultimately harm liberal causes. (Greenwald described the attacks on the ACLU’s position as “warped” and “indescribably misguided”.) In an email to staff, Romero acknowledged that many members and allies of the organisation feared its internal debate “means that our principles and our legacy are now in jeopardy”.
And those fears are valid. The so called progressive movement is waging war on liberalism.
The fact that these debates have divided even the staff of the ACLU is a sign of how acute they have become in the country at large. “A long-time consensus has been breaking down,” the legal historian Laura Weinrib, who has written an important new history of free speech in 20th-century America, told me. One study suggests that many liberals have become increasingly intolerant of racist speech.
At one time, intolerant liberal would have been considered an oxymoron. The hypocrisy of those who claim to be intolerant of racism but go around calling out “evil white men” is staggering.
Several other studies show that support for free speech is weakening, especially among millennials. “I think this generation perhaps doesn’t fully apprehend just how hard fought-for the right to freedom of speech was,” Romero told me recently. Partly as a result of these trends, free-speech defenders of all political stripes believe that the principle is under greater threat than it has been for generations. “We confront a real crisis now about the future of free speech in this country,” Wendy Kaminer, a former member of the ACLU’s national board, told me.
And if America, the bastion of free speech, falls, what will happen to free thinkers? Will they leave, go underground, move to the dark web? Pushing liberals closer to conservatives seems like a dangerous game to play. If the center is united with the right, can the authoritarian left stand against them?
Last fall, the ACLU’s president, Susan Herman, told the organisation’s national leadership conference: “We need to consider whether some of our timeworn maxims – the antidote to bad speech is more speech, the marketplace of ideas will result in the best arguments winning out – still ring true in an era when white supremacists have a friend in the White House.” She later added: “If we at the ACLU cannot figure out how to bridge our different experiences, and work together and do the critical work we need to do, what hope is there for the rest of the country?”
If in bridging your differences you throw away your principles, what hope is there for you? The reason liberal maxims are maxims is because they hold truth. If you turn away from them, you can no longer claim to be for liberty.
In the US, free speech has long been akin to American football – a cherished contact sport. As the Harvard professor Henry Louis Gates Jr once suggested, even your uncle, submerged in his La-Z-Boy armchair, thinks he knows everything there is to know about it. Arguments over who can say what seem to be breaking out all over the US these days. Can black athletes kneel during the national anthem to protest racial injustice without being fined or losing their jobs? Is it an unacceptable form of censorship to no-platform one’s political opponents, or to boycott companies that advertise on their television shows and websites? Should corporations be free to spend mind-boggling sums of money to flood the media with campaign spots for their pet political candidates?
These questions seem pretty clear to me. The first amendment covers government interference with the rights of the citizens. Athletes are free to protest whatever they want without government interference. Boycotting a company is not government interference. Corporations are not people, and therefore don’t have a right to free speech. On the other hand, deplatforming political opponents is clearly interference if done by the government.
Charlottesville inflamed two of the most urgent free-speech questions in the US. Should the law tolerate extreme forms of hate speech, which seek to deny people human dignity on the basis of characteristics such as race, sex, sexual orientation or religion? And who in the US – given its legacies of oppression and its growing inequality – is really free to speak?
Speech cannot deny anyone of dignity. The purpose of the ACLU is (or was) to insure everyone’s right to speak freely.
Americans are often suspicious of attempts to re-evaluate beliefs about free speech, as if any doubt is a chink in the ramparts of freedom into which the crowbar of totalitarianism will be forced. But the fact that many lawyers and activists who have dedicated their lives to civil liberties and civil rights are reconsidering these beliefs might give pause to those who wish to dismiss such ideas out of hand. If these questions could change even the ACLU, they might also change the nation.
Those who’ve dedicated their lives to civil rights are reconsidering their beliefs.
The debate unfolding across the US seems to stem, in part, from a growing conviction on the left that free speech, as we have been taught to imagine and mythologise it, does not in fact exist. As children, Americans learn that free speech is fundamentally egalitarian – a level playing field on which all ideas may be heard and strenuously contested. And, on the face of it, public discourse in the US is almost completely no-holds-barred. Private organisations, such as social media platforms, can largely set their own rules on speech, but the government and public institutions are not, in theory, permitted to muzzle people, no matter what they are saying.
Leftists who claim that free speech does not exist should be fighting for it all the more. The fact that they are not means that they don’t want free speech to exist.
Though many countries enacted hate-speech laws in the decades after the second world war, the US did not. The rights of the Westboro Baptist Church to protest at military funerals with placards that say “God Hates Fags” and “Pray for More Dead Soldiers” have been upheld. In many cases, it is legal to advocate violence to achieve your political ends. The concept of free speech has been stretched so far that it now welcomes under its tent the corporate financing of political campaigns, as well as fetish videos of small animals being crushed to death under stiletto heels. Alongside this expansive legal position, a cultural norm has developed that pretty much any viewpoint has a moral right to be aired.
That is exactly correct. Everyone has a moral right to air their viewpoint. Animal abuse is not free speech; why it is being conflated here is unclear. Corporate financing of political campaigns can be dealt with without impinging on the individual’s right to free speech.
But critics insist that what really counts is the power to be heard. And for many Americans, that often proves to be difficult, dangerous or incredibly expensive. “Speech is a luxury of class,” K-Sue Park, a legal scholar at UCLA, told me. “And of course class is completely racialised in this country.” If you want an idea of how unequal free speech can be in the US, compare the passive policing in Charlottesville – where armed white supremacists were able to beat and even shoot at counter-protesters – to the teargas, police dogs and rubber bullets deployed against black protesters in Ferguson in 2014, where residents were demonstrating against the killing of an unarmed black teenager by a white police officer.
And yet the authoritarian left have undue control over the most power tools allowing people to be heard: the social media. Right wingers like Milo Yiannopolous and liberal centrists like Carl Benjamin are banned from twitter, while the radical left are not.
One important part of the free-speech consensus that now appears to be breaking down is the belief that the KKK and other white supremacist organisations are operating within the bounds of acceptable political discourse – rather than as, say, terrorist organisations – and therefore have a moral right to be heard. “The mantle of free speech in the contemporary political context has somehow been claimed by the white supremacists,” Ahilan Arulanantham, the legal director and director of advocacy at the ACLU of Southern California, told me. To Weinrib, the historian, the conflict surrounding the ACLU is largely about “the extent to which defending these groups is perceived to legitimate their ideas”.
Not defending the rights of all deligitimizes the idea of human rights. If you don’t defend my human rights, why should I defend yours?
To critics of the ACLU’s approach, there is something hopelessly naive about deploring the views of white supremacists while celebrating their right to express themselves freely, and thereby influence the political debate. Defenders of the US’s free-speech status quo often paint its detractors as “snowflakes” whose primary objection is that hateful speech hurts people’s feelings. But to thinkers such as the literary theorist Stanley Fish – who once wrote a book titled There’s No Such Thing as Free Speech … And It’s a Good Thing Too – the promotion of white supremacists’ rights represents a failure of political realism. “The only way to fight hate speech or racist speech is to recognise it as the speech of your enemy,” Fish told an interviewer in 1998, “and what you do in response to the speech of your enemy is … attempt to stamp it out.”
Attempting to stamp out an idea simply drives it underground. You need to oppose bad ideas with better ideas. Using the force of the state to stamp out your enemies will do only one thing: create more enemies.
There are strong arguments for far-reaching free speech rights, but a number of fictions have also helped to preserve the American orthodoxy. One is that free speech as we know it today was born fully formed in 1791, with the first amendment to the US constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (I copied those 45 words out of a handy edition of the constitution, published by the ACLU, which fits snugly in the back pocket of my jeans.)
Hard to see how that is a fiction. It’s fairly black and white.
“The problem with the way people talk about the first amendment now is that they think it’s an abstract, timeless principle,” Park said. “No serious legal scholar believes that.” For much of American history, free speech remained largely theoretical unless you were a property-owning white man. Liberty was not a licence to rise above one’s station. “For over a century after the first amendment was ratified,” Weinrib writes in a forthcoming paper, “public officials regularly suppressed speech they regarded as threatening, blasphemous, antisocial, and even uncivil, and the judiciary rarely intervened.”
The right to free speech is an abstract, timeless principle. Does Park believe that those who drafted the US constitution, the Canadian charter of human rights and the UN’s Universal Declaration of Human Rights were not serious legal scholars? Yes, we are all aware that the rights in the US constitution were not applied universally before the last half century. But the principle is timeless, even if it wasn’t applied.
It was the ACLU that helped to move freedom of speech off the faded parchment of the Bill of Rights and into American life – through public advocacy, legal briefs and the representation of silenced citizens in lawsuits against the government. For the core group of ACLU founders, however, free speech began as a means to an end, not a solemn credo. The organisation was established by a small cadre of Ivy League-educated activists and lawyers with radical sympathies who wanted to advance the cause of workers. In order to promote the interests of the downtrodden in a relatively conservative society, they presented the ACLU as an unbiased advocate for the rights of folks across the political spectrum.
According to the ACLU’s website, its founders wanted to advance the cause of people being rounded up by the government, arrested without warrants and without regard to constitutional protections against unlawful search and seizure, brutally treated, held in horrible conditions, and deported as radicals.
In doing so, Weinrib writes, they “invoked and even pioneered the now-standard defences of free speech: that open debate advances democratic legitimacy, encourages political participation, and produces better policy outcomes.” As one ACLU affiliate staff attorney recently told me, they were so good at this argument for free speech “that they fooled themselves, and now fully believe that it wasn’t tactical, it was moral”.
It is both tactical and moral. It is tactical because if you don’t defend Richard Spencer’s right to say what he thinks, eventually, someone may come along who doesn’t like what you have to say, and they will take away your rights.
From the beginning, the ACLU’s hardline position fuelled controversies similar to the ones raging today. Nadine Strossen, a former president of the ACLU, told me that free speech is under “perpetual siege”. For years after its release, the National Association for the Advancement of Colored People (NAACP) clashed with the ACLU over the film The Birth of a Nation, which valorised the founding of the Ku Klux Klan a half-century earlier, sparking the Klan’s re-emergence as a lynch mob and political force. In the 1940s, labour advocates claimed that the ACLU had forgotten about the material conditions that preceded free speech – “bread and water … roots in the community … respite from fear”, as one put it. In the 1970s, the ACLU alienated much of its membership, and a good portion of the country, when it defended the right of a group of neo-Nazis to march through Skokie, Illinois, a Jewish community where thousands of Holocaust survivors lived. Even so, David Goldberger, who represented the neo-Nazis as a young ACLU lawyer, told me the staff in the late 1970s was “solid to the core” on its first-amendment position. (Consensus may have been easier then, when the ACLU was a much smaller organisation.)
Perhaps they were also simply more principled.
But by the early 1990s, new doubts were being raised about whether all speech should be free. “It’s naive to say the solution to racist speech is just more speech,” one member of the ACLU’s executive committee told USA Today. Over the previous decade, there had been an increasing focus on the unfulfilled promise of the US constitution’s 14th amendment, ratified after the end of the civil war, which was supposed to have made all Americans equal before the law. Fresh debates broke out on the left about how unbridled expression, from ethnic slurs to pornography, might perpetuate racial and gender inequality. Summarising the critique in 1993, Henry Louis Gates Jr, himself a supporter of expansive free-speech rights, wrote: “Liberalism’s core principle of formal equity seems to have led us so far, but no farther.” That same year, the legal scholar Cass Sunstein found that the country was “in the midst of a dramatic period of new thought about the meaning of free speech in America,” and raised doubts about the extent to which the first amendment was serving American democracy.
Equal opportunity (as much as can be achieved with unequal initial conditions) can only yield so much. People have different drives, different levels of intelligence, and, unless you bring everyone down to an equal level using the bloody club of communism, they start from different places.
To some observers, what appears to have happened since then is that large swathes of the left and the right have switched positions on freedom of speech. Many liberals, concerned about the threats that certain kinds of expression – especially hate speech and campaign financing by corporations – pose to human dignity and democratic participation, came to endorse some limitations on speech. By doing so, they occupied the position that moral conservatives had once held, albeit for different ideological reasons. The Catholic critic William Donohue once said that the ACLU was so “intoxicated with the idea of individual rights” that it was destroying the moral foundation of American society. Today, some on the left agree. “There’s a fetishisation of first-amendment absolutism” within the ACLU, says Olga Tomchin, a civil rights attorney who resigned in protest from the ACLU of Northern California board in September.
Liberals who endorse limitations on speech have become illiberal. How can Tomchin continue to be a civil rights attorney if she doesn’t believe that human rights apply to all humans?
Meanwhile, conservatives, who had once sought to silence communists and anti-war activists, realised that first-amendment-based protections for corporations could strengthen the hand of business. They also learned to use the rhetoric of free speech to push back against what they saw as an increasingly powerful liberal establishment ruling over universities and the media. Yet despite portraying themselves as staunch defenders of free speech, many Republicans have also campaigned for legislation that tends to restrict the political expression of poorer Americans and people of colour, such as onerous voter registration and ID laws.
Yes, many traditional conservatives don’t believe in free speech, at least not as a universal human right.
With Trump in the White House and racist violence permeating the culture from Ferguson to Charlottesville, debates over who has the power to speak have taken on an even greater urgency. “We haven’t seen, in the last 50 years, such alignment between white supremacist organisations and the government of the US,” said Vince Warren, a former senior staff attorney at the ACLU, who is now executive director of the Center for Constitutional Rights, a legal advocacy organisation that does not represent white supremacists. “That alignment requires us all to have a new strategy with respect to what level of tolerance we’re going to have with white supremacist ideas.”
Conceding that, if free speech is to be a universal human right, white supremacists have a right to express their ideas, is not tolerance of those ideas. It is the understanding that by suppressing the expression of those ideas by force, they will be strengthened.
“We’re now battling the original sin of this country, which is slavery and the subjugation of people of colour,” Warren continued. “It’s a battle for the soul of America.”
Slavery was abolished in the US in 1865. No one alive today has (legally) owned a slave. No one alive today has (legally) been a slave. To solve the problems of the present, including racism, we need to stop focusing on the past, without forgetting it.
In late August, the ACLU tweeted a picture of a blond toddler in a onesie with “FREE SPEECH” printed across the chest, waving an American flag. The caption read: “This is the future that ACLU members want.” To some observers, in the immediate aftermath of Charlottesville, it evoked the white-power slogan known as the “14 Words”: “We must secure the existence of our people and a future for white children.” As the tweet began to attract criticism, Romero’s communication staff called him. “We’re looking like [we’re saying] that the future of America is a white baby,” Romero recalled being told. “I’m like – well, tweet a picture of a brown baby screaming! You know, tweet a picture of an Asian baby screaming!”
Not great optics. With identity politics, you cannot win.
Around this time, an open letter from staff to the national leadership began circulating, which was signed by roughly 400 people – more than a quarter of the organisation at the time. The letter stressed the staff’s commitment to racial justice and free speech, but demanded a reconsideration of the ACLU’s approach to representing white supremacists. “We … believe white supremacy presents a grave threat to the full enjoyment” of other constitutional rights, such as equality before the law, the letter said, “and indeed to the lives of many people of colour.” In many cases, it added, “the ACLU’s representation of white supremacists furthers their aims”.
If you feel they are a threat, oppose their ideas. You can do that and support their right to express them. If you abandon your principles, you will no longer be the ACLU. Maybe you will become the ASJU. Then many, like me, who stand with you, will turn away.
Over the past two decades, the ACLU has expanded significantly, hiring younger and more diverse staff. “By doing that, they have ushered in a different way of thinking about the work,” Vince Warren, who was a senior staff attorney at the ACLU from 1999 to 2006, told me. The national office employs roughly 400 people, 40% of whom are people of colour. “We’re moving toward an honest examination of the limits of the first amendment and its place in the uneven structure of our society,” the ACLU lawyer in California said.
If an organization hires people who don’t agree with its core principles, it will fail to uphold them.
On 22 August, Romero wrote to staff to express his hope that the internal conversation about representing white supremacists could be had “without the glare of outside media”. But in public, the ACLU leadership vigorously reaffirmed the organisation’s traditional approach. Central to the ACLU’s defence of expansive free speech is an argument often known as “the marketplace of ideas”, which holds that the best way to combat one’s political enemies is out in the open. The more speech there is, the argument goes, the easier it will be for the best ideas to gain acceptance, and for the worst ideas to be consigned to the proverbial rubbish heap.
Principles are not traditions. Principles don’t change. Traditions are preferences or practices which are (and should be) subject to revision.
This argument is ubiquitous, and beloved of many free-speech defenders, but it rests on uncertain foundations. “What is the actual ground for believing that the best ideas will prevail?” asked K-Sue Park, the UCLA legal scholar.
How will suppressing other people’s ideas by force and imposing your own be better? I would say comparing the US to the USSR gives clear evidence of the benefits of free speech and democracy over totalitarianism.
Last summer, Park argued in the New York Times that the ACLU should expand its approach to free speech beyond the first amendment and consider the many ways speech is suppressed in America. As in any marketplace, the marketplace of ideas is shaped by power imbalances – such as racial and financial inequality – and “ignoring them is not the best way to ensure that the best ideas prevail,” Park said. The analogy to the market is even ridiculed by some within the ACLU. As the affiliate attorney put it, “I’m a fucking lawyer. I’ve had people explain to me the marketplace of ideas, that more speech is the answer to bad speech, etcetera. I mean it’s painful, it’s literally painful. There are far more sophisticated ways to think about these things.”
Correcting the power imbalances (by promoting free speech alternative like gab.ai, minds.com, and akasha, for example) is a great idea. You would think a f*cking lawyer would understand that if they are correct, simple concepts are better than sophisticated ways of thinking.
A second argument that the ACLU made in its public statements after Charlottesville is that government can’t be trusted to regulate speech. “If we were to authorise government officials to suppress speech they find contrary to American values, it would be Donald Trump – and his allies in state and local governments – who would use that power,” David Cole, the national legal director of the ACLU, wrote. Even if other bodies, such as the judiciary and civil society, were involved in deciding what speech is protected or suppressed, Cole argued that it would still be “virtually impossible to articulate a standard” that would allow us to suppress all the bad speech and none of the good, however we construe that. If the record of campus speech policies and European hate-speech laws are any indication, he may be right. In one troubling recent case in France, highlighted by Glenn Greenwald, 12 activists were convicted of violating hate-speech laws for wearing T-shirts that read “Long live Palestine, boycott Israel”.
Exactly right. Look at the UK, fining Count Dankula for making a joke about Hitler, banning Loren Southern for supporting the white nationalist Identitarian movement, and jailing Tommy Robinson for daring to criticize Muslim grooming gangs. They are headed down a dark path.
But the question, as Henry Louis Gates Jr once pointed out, has always been where, not if, to draw the line. We have long penalised certain kinds of expression, such as genuine threats and defamation, and it would be very difficult to imagine society operating without some such limits, however imperfect they may be. There is a tendency on the part of some first-amendment absolutists to imagine free speech not as part of a complex system of competing values, but as a binary state of purity or pollution – as if political speech in general is poisoned as soon as legal antidotes are created for any kind of speech whatsoever. As Waldron, the legal philosopher, once put it: “It’s as though one betrays free speech by even raising the issue.”
Well, raising the issue is your guaranteed right, until you overturn the right to free speech.
There is a famous quote often misattributed to Voltaire and trotted out in many defences of free speech: “I disapprove of what you say, but I will defend to the death your right to say it.” In some people’s eyes, that is exactly what the ACLU, and the US, is doing: suicidally defending the speech of racists and fascists. “We risk obsolescence, because Americans’ rights are defined by their level of privilege – often their level of racial privilege,” the dissenting staff member said. “And if we can’t take that into account in our work, what is our role in America other than propping up the institutional and structural racism that already exists?”
Rights are defined by the constitution. They are enforced by a government which, being made up of people, is fallible and biased. Throwing away the principles is not the solution.
If the ACLU really cared about racial justice, some critics say, it should continue defending free speech but stop privileging the rights of white supremacists. “Fascists seemingly get to skip the line” when it comes to who the ACLU represents, the former ACLU affiliate board member Olga Tomchin said – a criticism I also heard from several staff members. In turn, this harms the ACLU’s relationship with the marginalised communities it is also working to support and defend. “The ACLU can have a proactive first-amendment stance without giving free legal services to Nazis,” the affiliate staff attorney told me. “We can still let them riot at this park, but we’re not going to let them jump the list of literally hundreds of requests for representation.”
Fair enough, but in doing so, you risk ceasing to be an organization whose fundamental objective is civil liberties.
And if the ACLU really cared about freedom of speech, critics of its traditional approach add, it should focus more on the forms of oppression that prevent people from having a voice in US society, such as the fact that 3 million formerly incarcerated Americans remain stripped of the right to vote even after serving their sentences. “If the ACLU wants to say that it’s invested in the first amendment and not freedom of expression in the wider world, that’s one thing,” K-Sue Park said. “But it can’t claim to be a defender of free expression if it’s only concerned with defending the first amendment.”
This is fair. Freedom of speech is not the only civil right. And according to an ACLU spokesperson, “the organisation dedicates more time and resources to fighting mass incarceration than any other issue”.
When I asked Romero what accounts for the misapprehension that the ACLU spends so much of its time defending white-supremacist speech, he said: “It’s an important issue for the country and for the organisation. But it gets an outsized amount of attention.” He cited an example from Columbus, Ohio, where the ACLU has a lawsuit pending against the police department for pepper-spraying peaceful anti-Trump protesters. “They’re pro-immigrant, they’re anti-Trump, they get pepper-sprayed – no one’s writing anything about that case, right?”
Correct. The media is biased in favor of controversy.
One difficulty the ACLU faces, Romero said, is that other organisations do not have a mandate to defend free speech and advance racial justice – and pursuing both ideals at the same time can be exceptionally challenging. “You know, it would be much easier if I went to go run the NAACP or the Puerto Rican Legal Defence Fund – which is the one I could be possibly qualified for, because I’m not black but I’m Puerto Rican, right. It would be very easy to say ‘we don’t defend the white supremacists’,” he said. “What makes it really, really hard,” he added, “and really exceptional and really fantastic, is the fact that we do both, and that we have done both from the inception.”
Wouldn’t being a good civil liberties lawyer be the most important qualification?
There is a sense within the ACLU that “young people and people of colour need more of a voice”, said Ellen Yaroshefsky, a distinguished professor of legal ethics at Hofstra University and a board member of the ACLU’s New York affiliate. After Charlottesville, the dissenting staff member told me, “Our leadership made it clear that they’d prefer to only have one side of the story out there.” Other staff members described an ironic chill on the speech of the ACLU’s own employees. “There’s a deep understanding among staff across the country that you can’t individually speak about these things,” the affiliate staff attorney told me. If the ACLU leadership really believed in the marketplace of ideas, the attorney added, “then they would love staff to say contentious things publicly. Even about the issue they’re actually talking about, they don’t believe their own arguments.”
When you are speaking for your organization, you need to uphold the organization’s principles. If you are speaking for yourself, that is your right, but if you violate your organization’s principles, they have the right to end your association.
Romero told me there were no consequences for staff members who disagreed with the ACLU publicly. But he also suggested that, ultimately, the dissent would not lead him to change the organisation. “I understand that reasonable people will differ,” he said. “I’m also not running a kibbutz. I think it’s important to hear the divergent viewpoints and to engage them, but what the organisation stands for, and longstanding positions of the organisation, is not open to a staff plebiscite. That is a decision made by my board.”
In other words, you are free to exercise your free speech, but you can’t as an individual change the values of the organization.
On 1 May, after a half year in which the focus of America’s free speech debates moved away from the ACLU and back onto the football field, social media and campus, a committee set up in the wake of Charlottesville, and headed by David Cole, quietly released a new set of guidelines for how the organisation would decide to take free speech cases. The guidelines formalised something the ACLU leadership had declared publicly after Charlottesville – that it will not represent groups marching with guns. They also stated that the ACLU will consider how the cases it takes affect the people and partner organisations in the communities where those cases arise.
This sounds reasonable.
The dissenting staff member described the guidelines as “a step in the right direction, rather than something that gets us all the way there,” but the affiliate staff attorney thought that view of the guidelines was naive. “It’s a status-quo memo,” the attorney said. This squared with what the ACLU leadership told me – that only the board could change policy, and the guidelines merely codify existing best practices.
Exemplifying one of the principles of great organizations codified in Built to Last: stimulate progress in practices, but preserve the core values.
The guidelines lack two things in particular, the dissenting staff member said. The first was a “power analysis” that encourages the organisation to look at who already has power in society when they make their case selections. The second was an attempt to “turn the mirror inward” to look at the structural inequalities within the ACLU. But some affiliates are creating their own guidelines for taking cases involving white supremacists, and several are looking at how their own institution is shaped by the same injustices that warp American society. The commitment to racial equity cannot be “a side gig”, the staff member said. “It’s part and parcel of how the ACLU must shift its view in a changing America where everything is racialised – in order to protect civil liberties.”
To post modernists, everything is always about power. Committing to racial equity at the expense of universality will fundamentally change the ACLU, making it a social justice organization rather than a civil liberties organization.
What will happen in the country as a whole is uncertain but one lesson of America’s free-speech history is that entrenched norms do change. Jeremy Waldron, the legal philosopher, already sees things evolving. “There’s been a greater willingness on the part of free-speech advocates to concede the serious harm and evil that free speech can do,” he said. “People no longer talk in heroic terms about today’s neo-Nazis the way they did about the neo-Nazis marching in Skokie.” The debate on both sides, he feels, has become “slightly less hysterical, a bit more concessive”.
Free speech does little evil and harm when compared to suppressed speech. Free speech is a universal human right, not a mere ‘entrenched norm’. No one ever talked in heroic terms about neo-Nazis. If the argument over free speech has become concessive, the ACLU is doomed as a civil liberties organization.
“Will the first amendment survive without the ACLU being the counsel for white supremacists?” Vince Warren asked. “I think the answer is yes.” The question, he went on, is how the ACLU will defend more precarious constitutional principles, like the 14th amendment commitment to equality before the law. The ACLU affiliate staff attorney agreed: “There’s a movement afoot for justice – and we can be a part of it, or we can watch and cling to the model we had 40 years ago.”
The first amendment will (hopefully) survive, but the ACLU may not, if it strays from its principles. Joining the social justice movement will likely lead it to become a partisan ally of the authoritarian left like the Southern Poverty Law Center. In that case, the ACLU will end up standing against the very liberal principles it once stood for.