Let's admit something up front: The American Civil Liberty Union's history of free speech activism has often placed it awkwardly on the side of the country's most notorious and least savory figures: Fred Phelps. Larry Flynt. Nazis.
Now, nobody has ever really thought that the ACLU, a fixture in lefty politics, shared the reactionary positions of such extreme people and organizations. Instead, it was broadly understood that by fighting for the constitutional rights of people on the ugly fringe — and possibly needing a shower afterward — the organization was helping to preserve First Amendment rights for all of us to use.
That venerable idea is now under attack.
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The ACLU is under fire, both internally and from the left, from those who say its free speech mission cannot be reconciled with the cause of racial justice — and that in a conflict between the two, it is free speech that must give.
"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," says a new letter signed by 200 ACLU staffers.
The letter is just the latest such argument against the ACLU. In August, a former volunteer penned a New York Times op-ed urging the organization to "rethink" its commitment to free speech. And recently, Black Lives Matter activists at the College of William & Mary shut down a speech by an ACLU attorney with cries of "ACLU, you protect Hitler, too" and "liberalism is white supremacy."
One irony of all of this, of course, is that the ACLU would be first in line to defend the rights of its critics to speak about this issue.
But all the criticism raises the question: Are free speech and racial justice really incompatible with each other? Those who advocate most ardently for racial justice should hope not.
Why? Consider:
- If American governance and culture are indeed soaked in hundreds of years of white supremacy, and:
- If the ACLU protects the rights of anybody to speak, no matter how unpopular the stance or against the grain of government or public opinion, then:
- Organizations like Black Lives Matter that are seeking racial justice are probably the prime beneficiaries of the ACLU's work and an expansive application of the First Amendment. After all, protests by minority activists — no matter how justified — are rarely popular.
Consider a notorious ongoing example: It's the First Amendment that keeps President Trump from making rules that require NFL owners to penalize players who kneel during the national anthem to protest police brutality in African American communities. It's the legal muscle of the ACLU that probably helps keep Congress from passing a law requiring fealty to the flag at all times. America's dedication to free speech is what keeps the protests from going silent.
Implicit, too, in efforts to get the ACLU to backtrack on its commitment to free speech is another bad notion — that an idea silenced, or driven underground, is effectively an idea that has been killed.
That's not true. Just look to Germany, which has some of the most stringent anti-hate speech codes in the world — where it's illegal to be display Nazi symbols or deny the Holocaust. Despite that, the far-right "Alternative for Germany" party just won seats in that country's Parliament for the first time in the postwar era.
You can't blame racial justice activists for being angry and frustrated these days. In the era of Donald Trump and Charlottesville, overt racism occupies a place in our national life to a degree not seen since the Jim Crow era. It's scary, and it's offensive. But backing away from a commitment to free expression — or the ACLU's defense of it — will not solve our problems.
"Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate," ACLU director Anthony Romero wrote in August. "This contestation of values can only happen if the exchange of ideas is out in the open."
He's right. Free speech isn't antithetical to racial justice, but necessary for it. Even when such speech is unpopular. Now, more than ever, we need the ACLU to be stout in its historic defense of First Amendment rights.
