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The Business of Financing Hate Groups: Legal to Censor, but Unwise

Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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August 12, 2013

This piece was first published as part of The New York Times Room for Debate discussion, “The Business of Financing Hate Groups,” which asked: “Should credit card companies stop processing payments to such extremist groups? Or in the interest of free speech, should these organizations continue to be allowed to receive donations via credit card?”

It’s so tempting to go for the easy answer. Credit card companies are private businesses. They generally have the right, including possibly the First Amendment right, to refuse to deal with anyone. (Exceptions might include a collusive financial blockade of any group, which could violate antitrust law, and of course there are anti-discrimination laws.) That should apply all the more to bigots, right?

While superficially appealing, that answer is wrong. Pulling credit card services helps the haters and hurts free expression.

First, there’s the “martyr” problem. Back in 2010, PayPal threatened to cut off Pamela Geller, the anti-Muslim blogger, for violating its “acceptable use” policy. Geller immediately draped herself in the First Amendment — and put out a call for donations. “Truth,” she wrote, “is the new hate speech . . . . Want to make a contribution to my fight?” PayPal eventually relented, but it’s clear that the denial of services to a “hate speaker” transformed her modest soapbox into a wider broadcast.

Besides, this is a nuclear option.

Advocacy groups cannot survive without money. Financial services companies, subject as they are to public and shareholder pressure, are ill-equipped to determine which groups should live or die in hard cases of alleged “hate speech” (like Web sites critical of Catholicism or same-sex marriage). Because denial of service acts to directly censor the controversial speech, financial services companies should not be in the business of making these tough calls.

Intolerance is a human tragedy and must be addressed. But if there’s one cardinal rule in America, it’s that we err on the side of counter-speech, not censorship, when we hear things we don’t like but that don’t directly hurt us. Usually that truth applies to the government, but as principle if not law, it very often applies with equal force to private parties.

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