Equality, Justice and the First Amendment

For all people of good will regardless of party affiliation, race, creed, or color  the events that took place this weekend in Charlottesville were sickening and deeply disturbing.

Several clear themes emerged for me this weekend. And while they are pretty obvious, I thought I would share them with the broader ACLU community, in an effort to give voice to what many of us are feeling and to spark a further discussion that will allow us to move together with greater hope and resolve through what are likely to be troubling days ahead.

While the events of this weekend — with white supremacists holding lit torches  frightened and outraged many Americans, we can never underestimate the impact of these images on African-Americans. That rally reflected this nation’s history of slavery, racial violence, and terrorism, which has left an indelible mark on our democracy to this day. As employees, members, or supporters of an organization dedicated to racial justice, we are all affected. Many of us are even more directly affected because we and our family members are the direct targets of the white supremacists.  I know that speech alone has consequences, hurtful and deep, and that’s why I believe it’s important to place the ACLU’s representation of white supremacist demonstrators in Virginia in the broader context of the values and principles that have guided this organization for nearly a century.

First, the ACLU unequivocally rejects the ideology of white supremacists and we work actively with all our might to oppose that ideology in diverse communities across the country and to defend the right of all Americans to speak out against those views. By budget allocation, the national ACLU’s top issue areas are ending mass incarceration, protecting LGBT rights, and safeguarding immigrants’ rights, demonstrating our commitment to advancing equality and justice with communities that are often the targets of white supremacists' bigotry and hate.

The ACLU has represented or publicly supported Black Lives Matter activists in First Amendment matters at least five times in recent months. Our work against police agencies’ surveillance of activists has been frequently in support of the Black Lives Matter movement and American-Muslim organizations and individuals.  We’ve represented and taken public positions in support of anti-Trump protesters more than five times since the election and represented one of the Standing Rock protesters in a free speech case. The ACLU has also defended the free speech rights of African-American environmental activists in Alabama against a defamation lawsuit brought by the toxic waste-generating corporation they opposed. This is all in the past year alone.

We are not newcomers to this work. We’ve defended individuals targeted for their socialist, anarchist, and communist affiliations, for anti-war speech, and for civil rights activism throughout our history.  We have repeatedly defended the free speech rights of day laborers against city ordinances  grounded in anti-Latino racism  that would have prohibited their expressing their availability for work. The ACLU was founded in 1920 when the attorney general of the United States carried out his “Palmer raids” to round up immigrants based on their “subversive” views. And we stood shoulder-to-shoulder with the emerging labor movement of the early 20th century. The First Amendment freedom of speech, freedom of association, freedom of the press, and freedom of religion — has always been foundational for our organization.

Second, and more directly related to the events of this weekend, there are important reasons for our long history of defending freedom of speech  including speech we abhor. We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. 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. This contestation of values can only happen if the exchange of ideas is out in the open.  

There is another practical reason that we have defended the free speech rights of Nazis and the Ku Klux Klan. Today, as much as ever, the forces of white supremacy and the forces for equality and justice are locked in fierce battles, not only in Washington but in state houses and city councils around the country. Some government decision-makers are deeply opposed to the speech we support. We simply never want government to be in a position to favor or disfavor particular viewpoints. And the fact is, government officials  from the local to the national — are more apt to suppress the speech of individuals or groups who disagree with government positions. Many of the landmark First Amendment cases, such as NAACP v. Claiborne Hardware and New York Times v. Sullivan, have been fought by African-American civil rights activists. Preventing the government from controlling speech is absolutely necessary to the promotion of equality.

Third, the First Amendment cannot be used as sword or shield to justify or rationalize violence. Violence  even when accompanied by speech  does not garner the protection of the First Amendment. It is also true that the airing of ideas  no matter how repugnant or loathsome  does not necessarily lead to violence. The violence of this weekend was not caused by our defense of the First Amendment. The ACLU of Virginia went to court to insist that the First Amendment be applied neutrally and equally to all protesters.  Reasonable members of our community might differ on whether we ought to have brought that case. But I believe that having divergent views within an organization dedicated to freedom of speech is a sign of strength not weakness. I also believe the ACLU of Virginia made the right call here. Some have argued that we should not be putting resources toward anything that could benefit the voices of white supremacy. But we cannot stand by silently as the government repudiates the principles we have fought for  and won  in the courts when it violates clearly established First Amendment rights.

Invoking the threat of violence cannot serve as the government’s carte blanche to shut down protests. If that were the case, governments would almost always be able to shut down protests, even when the protesters themselves are peaceful, because others could exercise a heckler’s veto through violence or the threat of violence. We must not give government officials a free pass to cite public safety as a reason to stifle protest. They have a responsibility to ensure the safety and security of all protesters and may make their case in court for reasonable time, place, or manner restrictions. That is what we sought in our lawsuit in Virginia.

The hard job for us now is to find concrete strategies for healing the divides that were laid bare this weekend. For the broader society, this would require that white supremacy, bigotry, and racism be confronted and rejected. Freedom of speech has to be valued and heralded as the cornerstone of our democratic society. Political leaders must shape the political discourse to underscore what binds us together as people, rather than exploit our differences. And government officials must neutrally apply the First Amendment and ensure the safety of all Americans when they take to the streets to exercise their constitutionally protected rights.

For our organization, we must remain focused and vigorous in our defense of civil liberties and civil rights in every community and in every context. Our 97-year history of defending the constitutional rights of all persons — even those we disagree with  is imbued with a belief that these rights are indeed indivisible, unalienable, and granted to each of us in our democracy. Our job is to turn those promises and aspirations into a reality for all people. And that work has never been more important than now.

Add a comment (209)
Read the Terms of Use

Anonymous

I do not in any way believe that your support of the Charlottesville Unite the Right march was the correct choice, and reports of what the "demonstration" was--armed, inciting violence, and threats in word and deed--confirm that this is no longer a "free speech" issue. This is deadly, and is being endorsed by the leadership in government. It is a recipe for disaster. I am withholding any more donations until it becomes clear how much threat, how many armed militia and how much incitement it will take before you stop defending this as "free speech." It's not about being offended. It is about the risk of martial law being declared by a President who shows evidence of supporting the movement. Never has so much been riding on your decisions of what to defend as Constitutional. Please advise.

Uri Cohen

If you read what Mr. Romero wrote, he was defending the right for the group to have the march, not the right to physically attack anyone. You deciding to "cherrypicking" what is/not free speech is what exactly ACLU and other Civil Liberties group are trying to prevent. The day government is cherrypicking the protection of the First Amendment is the day we can kiss it goodbye.

Furthermore, Hate Speech is officially protected under the First Amendment under Matal v Tam. As someone who is Jewish, I am not the biggest fan of the Unite the Right supporters broadcasting Anti-Jewish remarks. However, anyone have the full right to hate me because of my religion. As long as they don't harm me physically, I could care less since their thoughts and speech is protected. I don't want the government to decide what is ok and not ok when it comes to allowable speech.

Anonymous

I agree that even the most repugnant racists are entitled to free speech--but you're not going to spend any more of my money defending that right. My sustaining donation is now going to SPLC. Rethink your priorities.

Anonymous

I appreciate your response, but am asking for clarification. You state that "This is deadly, and is being endorsed by the leadership in government". What are you referring to as deadly? Which leadership endorsed it and specifically, how? I'm not challenging you, simply seeking enlightenment. I am a supporter of the truth, freedom of speech and do not believe in racism or bigotry. But I am alarmed that the side I would normally agree with, (protesters of white supremacy), engaged in violence. I do not believe in violence unless it is to escape immediate bodily harm. Are you saying you don't agree with free speech? What evidence do you have that the president supported the movement? Are you talking about the nazi movement? Did Trump support the nazi movement? Please illuminate me.

Anonymous

Thank you for perfectly articulating my discomfort with the ACLU's stance on this issue. While I understand the importance of ACLU's commitment to defend free speech, even when it includes opinions that we abhor, I believe this should exclude acts of intimidation. Legal or not, I personally do not believe that demonstrators carrying assault rifles or other weapons should be protected under the first amendment. I don't care if it is the KKK or MADD, I do not feel safe when passionate people are carrying weapons. The ACLU's decision to defend "free speech" while disregarding the demonstrator's acts of intimidation kept me from joining the counter protest due to fear of violence.

David

How can you tie the militias to the white supremacists? The militias were there to help curb the violence. Go on YouTube and look up raw footage. You will see them stopping fights and separating people. You will see them treating wounds with medical supplies they bought. The militias are there to protect people, and they can do so in ways the police cannot.

Anonymous

You are so wrong. To protect Free/Equality for all, some lines have to drawn. We fought a WORLD WAR against Nazitroops to get rid of them, not bring them home. That is Insanity pure and simple. You don't understand that it is not just speech but what they are and what they indoctrinate their Children with. It will never end unless We end it, like we did at Normandy. Lets not be so mush minded and fake righteous because Nazigroups, Unreformed Islam, KuKK, White Supremacist groups endanger the freedom of more than half the world. It is a movement that has been growing in Norway, Greece, France, Italy etc and it must not grow in our country promising to protect Jews, blacks, whatever. You definitions are totally false. These groups do not follow the Constitution, do not Believe in it and cannot be sheltered by it. Whats next" A parade of binLadens family with armed Jihadists chanting Death to the West and claiming free speech? GET REAL!

Anonymous

You are so wrong. To protect Free/Equality for all, some lines have to drawn. We fought a WORLD WAR against Nazitroops to get rid of them, not bring them home. That is Insanity pure and simple. You don't understand that it is not just speech but what they are and what they indoctrinate their Children with. It will never end unless We end it, like we did at Normandy. Lets not be so mush minded and fake righteous because Nazigroups, Unreformed Islam, KuKK, White Supremacist groups endanger the freedom of more than half the world. It is a movement that has been growing in Norway, Greece, France, Italy etc and it must not grow in our country promising to protect Jews, blacks, whatever. You definitions are totally false. These groups do not follow the Constitution, do not Believe in it and cannot be sheltered by it. Whats next" A parade of binLadens family with armed Jihadists chanting Death to the West and claiming free speech? GET REAL!

Anonymous

Principle before politic or party is extremely rare these days. I aplaud the ACLU. I loathe our president but I often find myself upset with how his opposition treats him. Due unto others... Very important or you are no better than those you disagree with. The ACLU doing this shows how they will fight for legal rights inspite of personal or public opinion.

Anonymous

Suggest you reprioritize your budget allocation to support the most basic constitutional right, that of free speech. I was heartened to read this blog and learn that ACLU still supports free speech in a public forum, even repugnant speech, in accordance with constitutional time place and manner restrictions. Once speakers or those who protest them start with violence, their "speech" ends and law enforcement should begin, even if the perpetrators thought their violence was somehow "noble". No one should be able to squelch free speech in a public forum with physical threats or violence. The remedy for repugnant speech is MORE SPEECH of an opposing view. Fascists of all stripes want to take advantage of Americans' sense of fairness and kindness and bully us all into silence. Thank you ACLU for defending a right which benefits us all, even if it benefits repulsive views.

Pages

Stay Informed