Summary: With free speech under attack on many fronts by the Left, the ACLU stands almost alone on the Left defending one of the core precepts of a liberal social order. Here is a powerful essay by the ACLU’s National Legal Director. Stand by for a special post later today about Hurricane Irma.
“Why We Must Still Defend Free Speech“
By David Cole.
The New York Review of Books, 28 September 2017.
Posted with their generous permission.
Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesn’t equality, also protected by the Constitution, take precedence?
After the tragic violence at a white supremacist rally in Charlottesville, Virginia, on August 12, these questions take on renewed urgency. Many have asked in particular why the ACLU, of which I am national legal director, represented Jason Kessler, the organizer of the rally, in challenging Charlottesville’s last-minute effort to revoke his permit. The city proposed to move his rally a mile from its originally approved site — Emancipation Park, the location of the Robert E. Lee monument whose removal Kessler sought to protest — but offered no reason why the protest would be any easier to manage a mile away. As ACLU offices across the country have done for thousands of marchers for almost a century, the ACLU of Virginia gave Kessler legal help to preserve his permit. Should the fatal violence that followed prompt recalibration of the scope of free speech?
The future of the First Amendment may be at issue. A 2015 Pew Research Center poll reported that 40% of millennials think the government should be able to suppress speech deemed offensive to minority groups, as compared to only 12% of those born between 1928 and 1945. Young people today voice far less faith in free speech than do their grandparents. And Europe, where racist speech is not protected, has shown that democracies can reasonably differ about this issue.
People who oppose the protection of racist speech make several arguments, all ultimately resting on a claim that speech rights conflict with equality, and that equality should prevail in the balance.• They contend that the “marketplace of ideas” assumes a mythical level playing field. If some speakers drown out or silence others, the marketplace cannot function in the interests of all. They argue that the history of mob and state violence targeting African-Americans makes racist speech directed at them especially indefensible. Tolerating such speech reinforces harms that this nation has done to African-Americans from slavery through Jim Crow to today’s de facto segregation, implicit bias, and structural discrimination. And still others argue that while it might have made sense to tolerate Nazis marching in Skokie in 1978, now, when white supremacists have a friend in the president himself, the power and influence they wield justify a different approach.
- The leading collection of essays advancing this critique is Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberlé Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, And The First Amendment
(1993). For a thoughtful defense of hate speech regulation on liberal premises, see Jeremy Waldron, The Harm in Hate Speech
(2012).
(1993). For a thoughtful defense of hate speech regulation on liberal premises, see Jeremy Waldron, 
(2012).There is truth in each of these propositions. The United States is a profoundly unequal society. Our nation’s historical mistreatment of African-Americans has been shameful and the scourge of racism persists to this day. Racist speech causes real harm. It can inspire violence and intimidate people from freely exercising their own rights. There is no doubt that Donald Trump’s appeals to white resentment and his reluctance to condemn white supremacists after Charlottesville have emboldened many racists. But at least in the public arena, none of these unfortunate truths supports authorizing the state to suppress speech that advocates ideas antithetical to egalitarian values.
The argument that free speech should not be protected in conditions of inequality is misguided. The right to free speech does not rest on the presumption of a level playing field. Virtually all rights — speech included — are enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor. Homeowners have greater privacy rights than apartment dwellers, who in turn have more privacy than the homeless. The fundamental right to choose how to educate one’s children means little to parents who cannot afford private schools, and contributes to the resilience of segregated schools and the reproduction of privilege. Criminal defendants’ rights are enjoyed much more robustly by those who can afford to hire an expensive lawyer than by those dependent on the meager resources that states dedicate to the defense of the indigent, thereby contributing to the endemic disparities that plague our criminal justice system.
Critics argue that the First Amendment is different, because if the weak are silenced while the strong speak, or if some have more to spend on speech than others, the outcomes of the “marketplace of ideas” will be skewed. But the marketplace is a metaphor; it describes not a scientific method for identifying truth but a choice among realistic options. It maintains only that it is better for the state to remain neutral than to dictate what is true and suppress the rest. One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, but still prefer it to one in which the Trump — or indeed Obama — administration can control what can be said. If free speech is critical to democracy and to holding our representatives accountable — and it is — we cannot allow our representatives to suppress views they think are wrong, false, or disruptive.
Should our nation’s shameful history of racism change the equation? There is no doubt that African-Americans have suffered unique mistreatment, and that our country has yet to reckon adequately with that fact. But to treat speech targeting African-Americans differently from speech targeting anyone else cannot be squared with the first principle of free speech: the state must be neutral with regard to speakers’ viewpoints. Moreover, what about other groups? While each group’s experiences are distinct, many have suffered grave discrimination, including Native Americans, Asian-Americans, LGBT people, women, Jews, Latinos, Muslims, and immigrants generally. Should government officials be free to censor speech that offends or targets any of these groups? If not all, which groups get special protection?
And even if we could somehow answer that question, how would we define what speech to suppress? Should the government be able to silence all arguments against affirmative action or about genetic differences between men and women, or just uneducated racist and sexist rants? It is easy to recognize inequality; it is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.
But are these challenges perhaps worth taking on because Donald Trump is president, and his victory has given new voice to white supremacists? That is exactly the wrong conclusion. After all, if we were to authorize government officials to suppress speech they find contrary to American values, it would be Donald Trump — and his allies in state and local governments — who would use that power. Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities’ interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored? At one time, most Americans embraced “separate but equal” for the races and separate spheres for the sexes as defining equality. It was the freedom to contest those views, safeguarded by the principle of free speech, that allowed us to reject them.
As Frederick Douglass reminded us, “Power concedes nothing without a demand. It never did and it never will.” {Speech in 1857.} Throughout our history, disadvantaged minority groups have effectively used the First Amendment to speak, associate, and assemble for the purpose of demanding their rights — and the ACLU has defended their right to do so. Where would the movements for racial justice, women’s rights, and LGBT equality be without a muscular First Amendment?
In some limited but important settings, equality norms do trump free speech. At schools and in the workplace, for example, antidiscrimination law forbids harassment and hostile working conditions based on race or sex, and those rules limit what people can say there. The courts have recognized that in situations involving formal hierarchy and captive audiences, speech can be limited to ensure equal access and treatment. But those exceptions do not extend to the public sphere, where ideas must be open to full and free contestation, and those who disagree can turn away or talk back.
The response to Charlottesville showed the power of talking back. When Donald Trump implied a kind of moral equivalence between the white supremacist protesters and their counter-protesters, he quickly found himself isolated. Prominent Republicans, military leaders, business executives, and conservative, moderate, and liberal commentators alike condemned the ideology of white supremacy, Trump himself, or both.
When white supremacists called a rally the following week in Boston, they mustered only a handful of supporters. They were vastly outnumbered by tens of thousands of counterprotesters who peacefully marched through the streets to condemn white supremacy, racism, and hate. Boston proved yet again that the most powerful response to speech that we hate is not suppression but more speech. Even Stephen Bannon, until recently Trump’s chief strategist and now once again executive chairman of Breitbart News, denounced white supremacists as “losers” and “a collection of clowns.” Free speech, in short, is exposing white supremacists’ ideas to the condemnation they deserve. Moral condemnation, not legal suppression, is the appropriate response to these despicable ideas.
Some white supremacists advocate not only hate but violence. They want to purge the country of nonwhites, non-Christians, and other “undesirables,” and return us to a racial caste society — and the only way to do that is through force. The First Amendment protects speech but not violence. So what possible value is there in protecting speech advocating violence? Our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent. A. Mitchell Palmer, J. Edgar Hoover, and Joseph McCarthy all used the advocacy of violence as a justification to punish people who associated with Communists, socialists, or civil rights groups.
Those lessons led the Supreme Court, in a 1969 ACLU case involving a Ku Klux Klan rally, to rule that speech advocating violence or other criminal conduct is protected unless it is intended and likely to produce imminent lawless action, a highly speech-protective rule. In addition to incitement, thus narrowly defined, a “true threat” against specific individuals is also not protected. But aside from these instances in which speech and violence are inextricably intertwined, speech advocating violence gets full First Amendment protection.
In Charlottesville, the ACLU’s client swore under oath that he intended only a peaceful protest. The city cited general concerns about managing the crowd in seeking to move the marchers a mile from the originally approved site. But as the district court found, the city offered no reason why there wouldn’t be just as many protesters and counterprotesters at the alternative site. Violence did break out in Charlottesville, but that appears to have been at least in part because the police utterly failed to keep the protesters separated or to break up the fights.
What about speech and weapons? The ACLU’s executive director, Anthony Romero, explained that, in light of Charlottesville and the risk of violence at future protests, the ACLU will not represent marchers who seek to brandish weapons while protesting. (This is not a new position. In a pamphlet signed by Roger Baldwin, Arthur Garfield Hays, Morris Ernst, and others, the ACLU took a similar stance in 1934, explaining that we defended the Nazis’ right to speak, but not to march while armed.) This is a content-neutral policy; it applies to all armed marchers, regardless of their views. And it is driven by the twin concerns of avoiding violence and the impairment of many rights, speech included, that violence so often occasions. Free speech allows us to resolve our differences through public reason; violence is its antithesis. The First Amendment protects the exchange of views, not the exchange of bullets. Just as it is reasonable to exclude weapons from courthouses, airports, schools, and Fourth of July celebrations on the National Mall, so it is reasonable to exclude them from public protests.
Some ACLU staff and supporters have made a more limited argument. They don’t directly question whether the First Amendment should protect white supremacist groups. Instead, they ask why the ACLU as an organization represents them. In most cases, the protesters should be able to find lawyers elsewhere. Many ACLU staff members understandably find representing these groups repugnant; their views are directly contrary to many of the values we fight for. And representing right-wing extremists makes it more difficult for the ACLU to work with its allies on a wide range of issues, from racial justice to LGBT equality to immigrants’ rights. As a matter of resources, the ACLU spends far more on claims to equality by marginalized groups than it does on First Amendment claims. If the First Amendment work is undermining our other efforts, why do it?
These are real costs, and deserve consideration as ACLU lawyers make case-by-case decisions about how to deploy our resources. But they cannot be a bar to doing such work. The truth is that both internally and externally, it would be much easier for the ACLU to represent only those with whom we agree. But the power of our First Amendment advocacy turns on our commitment to a principle of viewpoint neutrality that requires protection for proponents and opponents of our own best view of racial justice. If we defended speech only when we agreed with it, on what ground would we ask others to tolerate speech they oppose?
In a fundamental sense, the First Amendment safeguards not only the American experiment in democratic pluralism, but everything the ACLU does. In the pursuit of liberty and justice, we associate, advocate, and petition the government. We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself. It protects the press, the academy, religion, political parties, and nonprofit associations like ours. In the era of Donald Trump, the importance of preserving these avenues for advancing justice and preserving democracy should be more evident than ever.
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About the author
David Cole is a Professor of Law and Public Policy at the Georgetown University Law Center and National Legal Director of the ACLU.
See his articles at the NYRB. He has written several books, including Torture Memos: Rationalizing the Unthinkable
For More Information
A reminder from the past: “James Madison’s Lesson on Free Speech.” by Jay Cost.
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Reblogged this on Utopia – you are standing in it!.
The alternative to free speech is violence which seems to be the goal and objective of those who are behind antifa and the other extremists. Calling everyone who disagrees with you a racist or a nazi is a transparent ploy to shut down free speech. Self righteous bigotry knows no wing and cannot be allowed to shut the opposite wing up.
Musgrove,
Nicely said!
About all I can say to this is that when winter comes, you find out which trees are the evergreens.
Man Who Laughs,
I’ve never heard that aphorism, and I’m from New England. That says it all!
“The response to Charlottesville showed the power of talking back.”
It showed the idiocy of “talking back” to imaginary voices in the minds of the left. My sense is that the single most prominent display of reaction against the Charlottesville events was the massive counterprotest in Boston. And that counterprotest was quite clearly, in retrospect, organized in response to a rally that was *not at all* associated with white nationalism or neo-Nazism. The unsavory aspects of the Boston free speech rally were, as far as I can tell, more or less a media fabrication.
I regard the post-Charlottesville response in Boston as an instance of mass hysteria, along the lines of what Mackay documented in *Extraordinary Popular Delusions and the Madness of Crowds*. It was aided and abetted by the mainstream media. It’s quite disturbing, at least to me.
A peaceful protestor was murdered by a white supremicist in Charlottesville. There’s nothing ‘imaginary’ about it.
Harry,
People are murdered every day in America. Muslims kill Christians, and vice versa. Blacks kill whites and vice versa. Only bigots draw sweeping conclusions about entire groups from such incidents.
sflicht,
Also note that the reason the counterprotestors greatly outnumbered those in the Boston Free Speech rally: the good liberals in the Boston govt authorized the permit for only ~200 — and the counterprotesters did not get (or need) a permit.
That and the (as you note) blatant lies about the rally by the Left and their enablers in the news media made it a discouraging spectacle. But the Left liked the outcome, and declared victory. Which it was, of a sort.
Wow, that’s one of the most bizarre arguments I’ve heard. We are talking about a group of people who self-identify as white supremacists and who espouse those ideas openly. The man who murdered the protestor is a representative of that self-identifying group, not all white people. You’re argument would be like saying you can’t draw conclusions about Salafi jihadists from one Salafi terrorist because that would be Islamaphobia.
Except that the antifa crowd is trying to broaden the definition of ‘white supremacist.’ Nice try tho
Rando,
THis is how conflicts are conducted in America today. Both sides try to paint themselves as innocent victims fighting for Truth and Justice, and their foes as Satan’s agents. Concepts and definitions are twisted beyond recognition. A guy tries to talk a girl into bed. She’s Xena in other circumstances (self-reliant, scornful of protection), but in hindsight becomes Cinderella (weak, helpless) and his actions become rape. White nationalists marching with torches become advocates for freedom. Confederate generals, leaders of the KKK, become soldiers for States Rights and personal freedom.
It’s all piles of BS true believers tell one another. The news media adopts this nonsense when it suits journalists’ biases and need for clickbait. I doubt it changes any minds. But it is useful for tribal leaders!
It is the factionalism that the Founders feared above all things because these tribal concepts make communication difficult and compromise almost impossible.
Yep. My facebook feed is full of people justifying such nonsense as what’s in that video (assaulting someone for holding their hands up… what?) or calling everyone on the left a traitor who’s ‘gunna git wutz comin to them.’ These are otherwise seemingly reasonable people. I’ve given up trying to reason with them.
Rando,
There have been almost 50,000 comments posted to the FM website (on 4100 posts in almost 10 years, w/ 8 million pageviews). I’ve answered most of them. A large fraction are from those on the political extremes. I’ve had hundreds of long conversations with them (and more on email).
My experience mirrors yours. With rare (very rare) exceptions, their minds run on rails. Discussion is a waste of time. I’ve learned a lot from the people in the middle, however.
Rando,
Concering Patriot Prayer: for a group whose leader swears up and down he isn’t racist, he didn’t seem to have any problem latching onto other alt-right causes and rallies, or letting white supremacists march with him, until very recently.
“Patriot Prayer leader dislikes racists, but they seem to hear a whistle” by Lilly Fowler at CrossCut — “Crosscut’s newest team member Lilly Fowler, photographed at UpGarden P-Patch Community Gardens in Seattle on June 15th.”
He seems more like he was part of the camp of pro-Trump “alt lite” fellow travelers (like McGinnis, Baked Alaska, Yiannopolous, etc.) who maybe wasn’t a committed fascist or racist, but was happy to ride along on their wave of popularity…until things got a little too real after the Charlottesville attack.
cj1lpee,
Thanks for the additional colon on Patriot Prayer!
This is a common pattern on the political fringes, left and right. There are extreme and often violent groups — who unfortunately tend to have the most determined and active people in the broad movement. The more “moderate” (relatively speaking) groups often have a loose alliance with them — in the “we approve of their motives/heart but not their methods/goals.” As these movements grow, the mainstream left/right gets to make the same choice — avow or disavow these extremists. Most often they tag along, enjoying watching the extremists attack their shared foes (doing what moderates would like to do) — and thrilling to watch their transgressive actions.
It is pretty despicable, but common as dirt.
The next step are the usual tacit alliances between non-violent political groups and their terrorist associates, each supporting the other. As with the IRA and Sinn Féin. Also quite despicable, but works well in practice. It’s a difficult arrangement for security services to fight until the terrorists go too far and the political wing is discredited and targeted for arrest.
Also, I’ve been wondering…why is it that more mainstream American conservatives seem so concerned that antifa is going to confuse them for Nazis?
Is it that they’re worried that all the alarmist language they successfully used against liberals for decades (calling anything to the left of Eisenhower “socialism” or “communism”) could get turned around and used on them?
ch1kpee,
“why is it that more mainstream American conservatives seem so concerned that antifa is going to confuse them for Nazis?”
Can you give us an example of this? I’ve seen thousands of such statements in comments here. Most are imaginary.
The US has always had limits on free speech. There’s no unrestrained speech guaranteed by the Constitution or our jurisprudence. As Yves Smith recently pointed out, there is protected speech but no absolute free speech – a common factor of banned speech in the US is speech that causes harm (i.e. defamation, perjury, blackmail, etc.) Smith includes a quote worth considering by itself,
““The very point of hate speech, [Waldron] says, “is to negate the implicit assurance that a society offers to the members of vulnerable groups — that they are accepted … as a matter of course, along with everyone else.” Purveyors of hate “aim to undermine this assurance, call it in question, and taint it with visible expressions of hatred, exclusion and contempt.” What the Vice video, and most of the other Charlottesville coverage, shows is an exercise in hate speech.””
The whole article is worth a read, by itself, but also as an articulate counterargument to the above article,
https://www.nakedcapitalism.com/2017/08/debunking-myth-free-speech.html
Harry,
That’s nice as a matter of good manners. It’s nuts as a matter of law. Quite totalitarian, with no foundation in either common law, US constitutional law, or good sense. The government has no right to control others speech because it might hurt someone’s feelings.
“no foundation in either…” No, the consideration of harm is a central feature of how speech is regulated in the US. There is legal foundation for such considerations, which I mentioned and YS discusses in detail.
“because it might hurt someone’s feelings” You’re just being glib to avoid the issue of harm – which is fine, but if you’re gonna actually respond, you might as well make it worthwhile.
“Quite totalitarian” This is just your personal opinion and/or your own definition of the word totalitarian. France and Germany are Europe’s largest democracies and both have ascendent far-right political groups despite having strong speech laws. Also, the range of political opinion observed in those countries is arguably wider than what is tolerated in the US. That’s a very odd form of totalitarianism.
Harry,
“That’s a very odd form of totalitarianism.”
Nope. When the government uses its police powers to limit your speech because it might hurt somebody’s feelings, that fits the definition quite nicely. Esp with the “elaborate ideology” you spin.
Since Germany and France’s both have long histories of falling into explicitly totalitarian rule (and accompanying domestic violence) — including an episode not so long ago — I’ll pass on applauding your citing them as exemplars.
Yes and those speech laws were passed after and in response to that ‘explicitly totalitarian rule’ (as you well know). You still haven’t explained how those countries are totalitarian.
Also, since you keep missing the point about harm, consider this modified sentence:
“When the government uses its police powers to limit [child pornography] because it might hurt somebody’s feelings, that fits the definition [of totalitarianism] quite nicely.”
Hi FM and all,
The calls for the end of free speech as we know it by relatively mainstream media types and, more alarmingly, “kids” is a great disturbance in the force, as if millions of voices might suddenly cry out in terror, but were suddenly silenced. I fear something terrible might happen.
The ACLU remains one of most effective bulwarks protecting free speech and other Constitutionally-derived civil liberties that one can contribute to by just stroking a check. Their example of defending the rights of people, or the actions of people, that they truly despise, as reflected in the article, should inspire us all.
For whatever it’s worth, I riff on this a little bit in a rant elsewhere.
To Harry Balsagna’s excellent point: “a common factor of banned speech in the US is speech that causes harm”.
I read the Naked Capitalism article, and while well taken, the issue is where does harm become material? Where’s the line? As the article points out, we started with a much more restricted set of speech back in the day (no 7 words for you!), but we’ve been chipping away at that for a very long time. Thank you, Lenny Bruce! Have we reached some point where we’ve cut away too much? Possible, but I think not. The Supremes tend to be consistently expansive in their interpretation of what constitutes free speech.
The problem is that the speech hasn’t changed so much, but they’ve gotten amplified and focused by a click-oriented, eyeball-centric online media and it must be used in an environment of increasingly dogmatic political correctness. Try trademarking your band name The Slants [PDF]. The Lanham Act is well intended, but really only so much virtue signalling. No, harm is getting redefined down to anything greater than inoffensive or being subjected to words issued by a non-oppressed group higher up (or lower down, depending on how you view it) in Crenshaw’s Hierarchy of Oppression. It’s not that I’m not sensitive to the power of words to hurt, but we need to be very careful if we choose to scratch the mark in the realm of the subjective feeling of an individual. It’s a hard problem, to be sure.
With kind regards,
Bill
Bill,
You have a much more generous view of the Left’s crusade against free speech. Both Left and Right have deeply-rooted totalitarian tendencies, which is why we need to keep a close watch on them. It does not matter that both dress up in fine airy words their desire for government shackles on us – backed by the government’s police power.
The 20th C provides ample evidence of this. Each side sees only the horrors of the other side, with amnesia about the horrors committed by their side. Typical madness of the fringes. We are in danger when either “fringe” grows too large. Esp so in times like today, when there are signs that both sides are growing too large. It’s very Weimerica.
ch1kpee: “Also, I’ve been wondering…why is it that more mainstream American conservatives seem so concerned that antifa is going to confuse them for Nazis?”
Are you completely or willfully ignorant of what the Left did in the 20th Century. Go look up who the Kulaks were and the Ukrainian Famine (Holodomer). Go look up what struggle sessions were, during the Cultural Revolution in China. Go look up Pol Pots Khmer Rouge, Shining Path Guerillas, & The Stasi in East Germany. Go look up what they did to dissidents in the Soviet Union and in Eastern Europe behind the Iron Curtain (Read: Gulag archipelago). That’s why people are so concerned
Asta,
Your reply is not only irrelevant to ch1kpee’s question (it makes no sense), but also seems a bit unhinged. I’m moderating your future comments. Anything sensible will be posted.
Reblogged this on ZeroToHero.
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