K-Sue Park, a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law, has an op-ed in today’s NYT under the headline “The A.C.L.U. Needs to Rethink Free Speech.”
The lede is outrageous:
The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.
The notion that defending the right to hold a rally makes the ACLU somehow complicit in a psychopath running people over with a car is just nuts. There’s nothing in the organization’s history to suggest that they condone violence.
After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.
While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression.
That’s simply a nonsensical juxtaposition. Defending the right of groups with unpopular opinions to exercise their fundamental rights goes hand-in-hand with protecting marginalized social groups. The civil rights marchers of the 1960s were afforded the right to protest despite being unpopular. And, when local governments intimidated them for trying to demonstrate, they garnered national sympathy, even from people who didn’t agree with their message, precisely because our First Amendment rights are sacrosanct.
By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all.
She’s, of course, right that the ACLU hasn’t successfully leveled the playing field on speech. But that seems a silly standard. We’re moving in that direction. All manner of marginalized groups—blacks, women, the LGBT community, and others—have advanced their cause because we’ve established the principle that localities can’t discriminate on the right to demonstrate on the basis of the content of speech.
For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment. Numerous other factors in the public sphere chill their voices but amplify others.
Again, this is right insofar as it goes. But how is that the ACLU’s fault?
Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.
This strikes me as a red herring in this discussion.
Other forms of structural discrimination and violence also restrict the exercise of speech, such as police intimidation of African-Americans and Latinos. These communities know that most of the systematic harassment and threats that stifle their ability to speak have always occurred privately and diffusely, and in ways that will never end in a lawsuit.
A black kid who gets thrown in jail for possessing a small amount of marijuana will face consequences that will directly affect his ability to have a voice in public life. How does the A.C.L.U.’s conception of free speech address that?
Since they’re largely unrelated issues, it doesn’t. But, as it turns out, the ACLU is on Park’s side on this issue and fighting to change our laws to remove the disparate impact.
The A.C.L.U. has demonstrated that it knows how to think about other rights in a broader context. It vigorously defends the consideration of race in university admissions, for example, even as conservative challengers insist on a colorblind notion of the right to equal protection. When it wants to approach an issue with sensitivity toward context, the A.C.L.U. can distinguish between actual racism and spurious claims of “reverse racism.”
So . . . . they’re on her side in this one, too.
The government’s power is not the only thing that can degrade freedom of expression, which Justice Benjamin Cardozo once described as “the matrix, the indispensable condition, of nearly every other form of freedom.” The question the organization should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?
She answers her own question here: the ACLU prioritizes free speech for exactly the reasons Cardozo did. But it’s a rather robust and well-funded operation. It’s doing multiple things.
This is a vital question because a well-funded machinery ready to harass journalists and academics has arisen in the space beyond First Amendment litigation. If you challenge hateful speech, gird yourself for death threats and for your family to be harassed.
Left-wing academics across the country face this kind of speech suppression, yet they do not benefit from a strong, uniform legal response. Several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.
This is a strong starting point. Park is absolutely right that harassment, particularly in the anonymity of the online space, is a threat to free speech. And an absolutist conception of free speech would protect said harassment, ironically harming the central purpose of said freedom in defense of a narrow conception of it. Oddly, though, she doesn’t point to the ACLU doing that or otherwise suggest how the ACLU should combat this situation before moving on to the next point.
Government suppression takes more subtle forms, too. Some of the protesters at President Trump’s inauguration are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.) States are considering laws that forgive motorists who drive into protesters. And police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.
The danger that communities face because of their speech isn’t equal. The A.C.L.U.’s decision to offer legal support to a right-wing cause, then a left-wing cause, won’t make it so. Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.
There’s a lot to unpack here. Rioting is and should be illegal; it’s not a form of free expression. It would be odd, indeed, for the ACLU to defend violence.
Yes, police should act equally in like protests. But what is the ACLU supposed to do about it? Aside from the campaign it’s been waging for years against police militarization?
She’s right in her implicit argument that all radical views aren’t equal. But who gets to decide which ones deserve protection? While I happen to think that, say, Black Lives Matter has a worthier message than the assorted alt-right groups, the notion that they have unequal rights to present their views is dangerous.
The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.
First, as noted earlier, the ACLU is actually fighting on all these fronts and has been doing so for years. Second, picking and choosing which free speech cases to weigh in on in the manner Park advocates would weaken the ACLU, turning it from a principled advocate for the equal protection of the laws into yet another partisan/ideological interest group.
Sometimes standing on the wrong side of history in defense of a cause you think is right is still just standing on the wrong side of history.
Well, sure. The ACLU leadership rather obviously thought the KKK was on the wrong side of history when it wanted to march through a community of Holocaust survivors in the 1970s. And they surely think the neo-Nazis and KKK are on the wrong side of history today. But a major way that history advances in a democracy is through freedom of expression, particularly for unpopular groups. Even aside from the violence, the mere words and symbols used by those groups over the weekend set back their cause and shined a light on the fact that far less extreme groups—and, indeed, the president of the United States himself—have aided and abetted their detestable cause. That’s very much a good thing.
