Why the ACLU is adjusting its approach to “free speech” after Charlottesville

“The ACLU has blood on its hands.”

It was a not-uncommon sentiment in the wake of last week’s Unite the Right rally in Charlottesville, in which 32-year-old Heather Heyer was killed (allegedly at the hands of white supremacist James Alex Fields Jr.) and far-right activists assaulted and intimidated counterprotesters.

The ACLU had sued the city of Charlottesville to allow the Unite the Right rally to happen downtown. And now, it had happened, and blood had been spilled.

The ACLU’s been through this cycle before. When the ACLU famously defended the rights of a Nazi group to march through a largely Jewish neighborhood in Skokie, Illinois, in the 1970s — a case that’s set the parameters of First Amendment protections for protests for the last 50 years — it lost thousands of members and faced bitter questions from liberal American Jews about how it could defend the group that had killed their relatives (and in some cases tortured them) just a few decades before.

But these aren’t the same Nazis who marched through Skokie, and this isn’t the same progressive movement — and it isn’t the same ACLU, either. The backlash has already spurred other ACLU chapters to declare that they don’t believe free-speech protections apply to events like the one in Charlottesville, and led the ACLU’s national director, Anthony Romero, to declare the group will no longer defend the right to protest when the protesters want to carry guns.

The ACLU’s response didn’t resolve the underlying problem. It didn’t fully address a criticism put forward everywhere from Twitter to the New York Times, which published a column from former ACLU volunteer K-Sue Park on Thursday called “The ACLU Needs to Rethink Free Speech.”

And with city governments already moving to restrict future far-right rallies to prevent a recurrence of what happened in Charlottesville — the city of Berkeley just passed an emergency ordinance allowing the police to dissolve gatherings that don’t have permits, for example, in anticipation of a forthcoming “alt-right” rally there — the ACLU is going to have to make some very quick decisions about when and how it will defend the far right in 2017.

The ACLU seemed like it was in the midst of a partial reinvention as an explicitly progressive organization for the Donald Trump era. It was one of the biggest beneficiaries from the #resistance groundswell of small donations and grassroots interest after the 2016 election, and it’s leaned into the idea of itself as a movement organization rather than just the country’s most powerful public-interest law firm.

But the Charlottesville rally called attention to an important fault line between the ACLU’s traditional vision of justice and the way the progressive grassroots movement sees justice in 2017: a fight over whether the best way to protect the powerless is to stand against the principles that could be used to crush them, or simply to stand on the side of people seeking social equality by whatever means are necessary.

In the days before the Unite the Right rally, it became clear that Charlottesville would be a gathering point for both right-wing rallygoers and left-wing counterprotesters. The city of Charlottesville attempted to defuse the situation by moving the Unite the Right rally away from its original location — Lee Square, in downtown Charlottesville, featuring the statue of Robert E. Lee that was the ostensible cause of the rally — to a location farther away from the center of the city.

The city argued it was trying to prevent confrontation. But to free-speech activists — including the ACLU of Virginia — it was a pretty standard attempt to use a rally permit to marginalize unpopular speech. So the organizers of the rally sued, with the ACLU’s support, and won the right to keep the rally downtown.

You know what happened next. The Unite the Right rally was disbanded before it had officially begun, after the hours before the rally were marked by clashes between rallygoers and counterprotesters. The bulk of the violence was initiated by rallygoers, and as counterprotesters marched down a street hours after the rally, a car (allegedly driven by Fields, who had attended the rally carrying a shield with the logo of white-supremacist group Vanguard America) killed Heyer and injured 19 other counterprotesters.

Almost immediately, some progressives began to ask why the ACLU had fought to allow this to happen. ACLU of Virginia board member Waldo Jaquith resigned, alleging on Twitter that the organization ignored signs that rally organizers were encouraging violence — and that “what is legal is not always right.”

With more “alt-right” rallies planned for the weeks after Charlottesville, and mounting pressure on the ACLU to stop “defending Nazis,” the ACLU’s California affiliates issued a statement on Wednesday declaring, “We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution.”

At first, it seemed like the California affiliates were subtweeting, or even splitting with, their Virginia counterpart. But on Thursday, the national organization appeared to side with the Californians — and draw a new line that would have prevented them from defending Unite the Right. ACLU director Anthony Romero told the Wall Street Journal: “If a protest group insists, ‘No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them. They can find someone else.”

The ACLU’s apparent shift of position angered some of the civil-libertarians who’d been defending it most forcefully early in the week. “Until now,” lawyer and blogger Scott Greenfield wrote, the ACLU has “never quite come out and announced that they will refuse to defend a constitutional right. This announcement says that when someone seeks to exercise two rights at the same time, the ACLU is outta there.”

At the same time, though, it’s not clear that Romero’s statement is enough to appease the progressives who believe that the ACLU has blood on its hands for Charlottesville. Because not only is what’s legal not always the same as what’s right (as Waldo Jaquith said), but in this case, the answers to both of those questions are hotly contested.

In practice, freedom of speech isn’t exactly absolute: “Government may not censor speech because of its viewpoint,” says former ACLU director Nadine Strossen, “but it may censor speech because of its effects.”

To be specific, government can prevent speech in the case of an “emergency” — when it’s clear that there’s no other way to prevent or protect against violence. But for more than a century, the courts have wrestled with what responsibility someone has when their speech results in violence — and when it’s okay to outlaw the former to prevent the latter.

One speech emergency is a “true threat” — speech that is intended to provoke a “reasonable fear that you are going to be attacked or harmed by the person engaging in the expression.” Another (the one that the ACLU’s California affiliates appeared to be invoking in their statement) is incitement: as defense lawyer and blogger Ken White puts it, “Is it intended to, and likely to, cause imminent lawless action?”

The “imminent” is important. “Speech about why it’s morally appropriate to do lawless things is not incitement,” White says.

An earlier legal standard held that the government could prohibit speech that had a “bad tendency” to result in lawless action down the road — a standard that was used to censor Communists and antiwar protesters, among other groups. But in 1969, the Supreme Court ruled that the state of Ohio couldn’t prosecute speakers at a KKK rally simply for advocating for “reveangeance” against “n*****rs” and “Jews.” The reason, as Strossen puts it: “They were having a rally just for themselves. There was nobody else there, and nobody could see it,” so there wasn’t an imminent danger. (The KKK, in that case, was represented by the ACLU.)

But as that case makes clear, incitement isn’t just about what someone says but the context in which they say it. The same is true for “true threats” — the question is what about the context in which the speech is offered makes it clear that it’s reasonable for someone to feel afraid of harm.

And in the 21st century, the context in which this sort of speech is being delivered as part of a public protest is different for one big reason: guns.

“The cases acknowledging an individual right to bear arms are very recent,” White points out. After decades of maintaining that the Second Amendment applies to groups of people (a “well-organized militia”) instead of individuals seeking to own and carry guns, the Supreme Court sided with the “individual right” in the 2008 case Heller v. District of Columbia. That puts it “like 50 years behind where the First Amendment is,” White says, in terms of case law about what that right actually means: who it refers to, when it applies, and what if any “emergencies” justify the government curtailing it.

In other words, when groups of people decide to rally at a location for political purposes, and many of those people decide to bring guns, they’re sitting at the intersection of two different rights. And, White says, “I don’t think that we’ve really developed the law yet very well on the connection between” them.

And there isn’t an obvious bright line about what kind of speech is turned into a threat or an incitement when there’s a gun involved.

“I can certainly imagine if I were for example a counterdemonstrator, and I’m demonstrating against people who are there brandishing firearms, I think I would feel very frightened and I think that would be a reasonable fear,” says Strossen. “Even as I’m describing it, I think my imagination’s pretty good, because I’m feeling a little chill go down my body.”

But White is adamant that “carrying weapons isn’t in itself incitement,” and that someone can’t argue they face “reasonable fear” from a demonstrator simply carrying a weapon in a place where it’s legal to do so. “Combine open carry with a statement like ‘we are coming for you,’ and you’ve got something,” he says. “But you still need a threat.”

In other words, all of these cases are inevitably going to come down to the details of who said what and when — details that are hard enough to figure out in advance, when the question is whether government will allow a future event to happen, and that are certainly not easy to draw a general principle on.

Strossen interprets Romero’s statement of the ACLU’s new policy as a commitment to “look even closer at the facts” before deciding which cases to take on. But “at a time when legal specificity is needed,” says White, “they’re being dangerously vague about what they think the law is.”

He points out that the California affiliates’ statement “was issued in the context of imminent (right-wing) marches in California. Are they saying it isn’t constitutionally protected? Are they saying it shouldn’t be?”

And are they saying that the real problem is the guns, or that the people holding them are white supremacists?

Without being vague enough to drive lawyers like Ken White crazy, though, the ACLU’s statements would have seemed totally tone-deaf and non-responsive to the controversy raging around them. Because the question that’s engulfed the progressive movement in the week after Charlottesville is whether the mere existence of outspoken white supremacy, in public performance, is an existential threat.

From a leftist perspective, there’s more to violence than physical aggression — it’s also violent to promote ideas that see other groups of people as less than human, marginalize them, or prevent them from speaking. Those are the people who believe that “hate speech” either isn’t protected as free speech, or that it shouldn’t be — because in the case of “hate speech,” speech and violence are the same thing.

The NYU law professor Jeremy Waldron laid out this case in a 2012 book, The Harm in Hate Speech. He argued that the message sent by “hate speech” was “to negate the implicit assurance that a society offers to the members of vulnerable groups — that they are accepted” and that they can go about their day “with no need to face hostility, violence, discrimination or exclusion by others.” To Waldron, that’s an assurance the government is obligated to provide to all people equally, and if hate speech undermines it then hate speech ought to be curtailed.

Even some progressives who don’t believe in outlawing “hate speech” in general believe that white supremacy and Naziism are inherently violent ideologies, and therefore that adhering to them is a call for violence in its own right.

The debate isn’t over punching Nazis with guns, it’s over punching Nazis.

But the ACLU has built its reputation, for decades, on the idea that there is no ideology so dangerous it doesn’t deserve vigorous First Amendment protections. “Going back to the organization’s founding in 1920,” says Strossen, “it was defending freedom of speech for anti-civil-libertarians, everybody from fascists to communists.” (This is something of a whitewash of the ACLU’s institutional history — like a lot of other establishment liberal organizations in the 1950s, it was too afraid of McCarthyism to defend Communists and even required members to abjure Communism in an oath — but it’s a decent account of its impact on the current state of free-speech law.)

From the perspective of civil libertarians, those cases — and the Skokie Nazi case — prevented a dangerous slippery slope: any legal precedent that gets set restricting speech because of what it says can easily be turned against any other speech the government doesn’t favor. If the paradigmatic free-speech cases of 50 years ago protected racist right-wingers, the precedents they overturned had prosecuted communists, pacifists, labor unionists, and civil-rights and racial-justice advocates.

It’s mind-boggling to civil libertarians like Strossen and White that any progressive, in the Trump era, would be okay with the government deciding what speech is inherently hateful or violent and what isn’t.

“If people understood that US law draws very sensible lines between punishable and protected speech,” says Strossen, “I think they would have a lot more confidence that current law is the way to go.” The unspoken counterpart: if people tried to move those lines, they wouldn’t end up being able to control where the law ended up.

Civil libertarians see a bright line in terms of law — they have to protect a particular legal principle unconditionally, because otherwise the principle will disappear. Meanwhile, their critics see a bright line in terms of power. To many progressives, the question of who needs to be protected is much more important than the ideas being used to justify it — and they feel it’s simply not all that difficult to step in when a principle is being used to benefit the powerless, and step back when it’s used to benefit the powerful.

In retrospect, it’s a little surprising that the ACLU wasn’t better prepared to come under fire from the left over Charlottesville; after all, it had just survived another progressive uproar about taking on a right-wing client.

The week before the Charlottesville rally, the national ACLU and the DC and Virginia affiliates announced that they were suing the Washington Metropolitan Area Transit Authority, which regulates the Metro subway system in DC, for rejecting ads deemed “political.”

The group of rejected advertisers represented by the ACLU included a women’s-health network that specializes in contraceptives and abortion — but it also included right-wing firebrand Milo Yiannopoulos, who’s managed to squeeze 15 minutes of fame out of saying inflammatory things and being protested on (and banned from) college campuses because of them.

Perhaps unsurprisingly, the headline became “ACLU defends Milo.” And several progressives were annoyed at best and outraged at worst — not because they were particularly invested in keeping Yiannopoulos’ ads off the DC Metro, but because they didn’t understand why the ACLU was choosing to take him on as a client (especially when they could have taken a lower-key approach, like filing a brief on his behalf).

This is the root of the progressive objection to the ACLU: not that the things it is doing are legally wrong, but that by picking battles that don’t always align with progressive objectives it’s missing the forest of justice for the trees.

“The danger that communities face because of their speech isn’t equal,” K-Sue Park wrote in her Thursday New York Times column. “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.”

It’s a charge that’s been leveled against the ACLU since Skokie and earlier. In a post-Skokie debate between the ACLU’s then-director and a leftist lawyer from the National Lawyers Guild, the leftist lawyer opened with: “The law is not neutral. The courts are not neutral. The A.C.L.U. is not as neutral as it pretends.”

But the progressive critique now, as articulated by Park, is actually that the ACLU is neutral, and reality isn’t. It’s an argument progressives also made in 2010, when the ACLU supported the Supreme Court’s controversial decision in Citizens United, which struck down restrictions on campaign finance as a First Amendment violation. Park writes that power determines whose speech matters, and that a real defense of “free speech” would “imagine a holistic picture of how speech rights are under attack right now” — for everything from corporations to criminal law and voting restrictions — “not focus on only First Amendment case law.”

From this perspective, allowing the government to pick and choose whose speech is protected isn’t a slippery slope — it’s already happening. (The fact that state legislatures in Tennessee and Florida considered bills in 2017 that would give immunity from civil lawsuits to drivers who ran into protesters blocking streets was used both by Ken White in arguing for “viewpoint-neutral” free speech protection, and by Park in her op-ed arguing against it — with both of them using the example to make the case that the current power structure is biased against left-leaning dissent.) The difference is that it’s happening in ways that they allege are too subtle for the ACLU’s current strategy.

What’s odd about Park’s critique is that the ACLU is involved in many, if not most, of the issues she thinks are posing a more urgent threat to free speech than attempts to restrain Nazis from marching on Lee Square. The contemporary ACLU has whole divisions dedicated to voting rights, criminal justice, and LGBTQ rights. It consistently advocates for affirmative action. It’s poured millions into an effort to protect immigrant rights at the state level. It has become, in many ways, enmeshed with the rest of the progressive movement.

But that’s also what makes Park’s critique, and the critique of others who agree with her, hit so close to home. Because the ACLU does look like a progressive organization right now, it’s particularly striking when it disagrees with the rest of the progressive movement.

This was true before the 2016 election (it’s why the ACLU took so much heat for Citizens United). But in the wake of the election of Donald Trump, it really looked like the ACLU itself was embracing an identity as a leader of the progressive movement.

In the immediate aftermath of the election, the ACLU became a touchstone organization for progressives (from people on Twitter to celebrities) to broadcast their support for and call for donations to. After all, it was an umbrella organization working on a range of issues that tracked with the people most likely to be made vulnerable under a Trump administration, but the fact that it was not explicitly on the Democrats’ “side” made it look like a symbol of the transpartisan decency that the country had lost by electing Trump.

By February, the organization had raised $79 million since the election (from 1 million donors). Its membership had more than doubled. But along with that flood of support came the expectation that the ACLU actually do something with it, and become a #resistance leader.

Grassroots movement-building wasn’t the organization’s traditional strength, but it became a new focus. Visit the ACLU’s website today, and this is the banner you’ll see, above a picture of Trump and the headline “THE FIGHT IS ON”:

And they’ve used that network to mobilize on progressive economic issues beyond the organization’s traditional mission — during the fight over Congressional repeal of the Affordable Care Act, for example, the ACLU fought hard to resist cuts to Medicaid.

If someone didn’t know anything about the ACLU before the election — or if they believed, with some reason, that the group was remaking itself for the Trump era — it makes sense they’d be alarmed to see the ACLU defending Trump allies like Milo Yiannopoulos, or helping the white supremacists who Trump was excoriated for calling “very fine people” in Charlottesville. That doesn’t seem like resistance, it seems like helping the people trying to crush the resistance.

As far as the ACLU’s traditional values are concerned, resistance is what you do, not the side you’re on. And they’re used to members not agreeing with everything they’re working on: “no thinking person could possibly agree with every single thing that the ACLU does,” says Strossen.

But she hastens to add, “I think it’s essential that there be at least one organization that is striving to do what our government is required to do, which is to defend all fundamental freedoms for all people regardless of the color of skin and regardless of the color of your ideology.”

Traditionally, that principle has been immune to pressure from members. But with more members — and members with higher expectations, than ever before — it’s not yet clear whether the post-Charlottesville reset the ACLU’s attempting is a way to smooth over the difference between their vision of justice and many of their members’ — or a step to bring themselves in line with the progressive resistance group members may want them to be.