The ACLU and Necessary Defense

The article is titled: The Misguided Attacks on ACLU for Defending Neo-Nazis’ Free Speech Rights in Charlottesville.

Some of the attempts to assign culpability for this violence on others besides the perpetrator were reasonable and rational. In particular, a legitimate causal connection can be drawn between this violence and the two-year flirtation by Donald Trump and several of his closest advisers with the rhetoric and even the activism of white nationalism, as even many of the white supremacists themselves recognized.

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Last week, the ACLU sparked controversy when it announced that it was defending the free speech rights of “alt-right” activist Milo Yiannopoulos after the Washington Metropolitan Area Transit Authority refused to allow ads for his book to be displayed on public transit. Lost in the debate was that other groups the ACLU was defending along with Yiannopoulos were also censored under the same rule: Carafem, which helps women access birth control and medical abortion; the animal rights group PETA; and the ACLU itself.

For representing Yiannopoulos, the civil liberties group was widely accused of defending and enabling fascism. But the ACLU wasn’t “defending Yiannopoulos” as much as it was opposing a rule that allows state censorship of any controversial political messages the state wishes to suppress: a rule that is often applied to groups which are supported by many who attacked the ACLU here.

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The flaws and dangers in this anti-free speech mindset are manifest, but nonetheless always worth highlighting, especially when horrific violence causes people to want to abridge civil liberties in the name of stopping it. In sum, purporting to oppose fascism by allowing the state to ban views it opposes is like purporting to oppose human rights abuses by mandating the torture of all prisoners.

One of the defining attributes of fascism is forcible suppression of views (“For Ur-Fascism, disagreement is treason,” wrote Umberto Eco); recall that one of Trump’s first proposals after winning the 2016 election was to criminalize flag desecration. You can’t fight that ideology by employing and championing one of its defining traits: viewpoint-based state censorship.

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Let’s begin with one critical fact: the ACLU has always defended, and still does defend, the free speech rights of the most marginalized left-wing activists, from communists and atheists, to hardcore war opponents and pacifists, and has taken up numerous free speech causes supported by many on the left and loathed by the right, including defending the rights of Muslim extremists and even NAMBLA. That’s true of any consistent civil liberties advocate: we defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalized and vulnerable in society.

The ACLU is primarily a legal organization. That means they defend people’s rights in court, under principles of law. One of the governing tools of courts is precedent: the application of prior rulings to current cases. If the ACLU allows the state to suppress the free speech rights of white nationalists or neo-Nazi groups — by refusing to defend such groups when the state tries to censor them or by allowing them to have inadequate representation — then the ACLU’s ability to defend the free speech rights of groups and people that you like will be severely compromised.

It’s easy to be dismissive of this serious aspect of the debate if you’re some white American or non-Muslim American whose free speech is very unlikely to be depicted as “material support for terrorism” or otherwise criminalized. But if you’re someone who cares about the free speech attacks on radical leftists, Muslims, and other marginalized groups, and tries to defend those rights in court, then you’re going to be genuinely afraid of allowing anti-free speech precedents to become entrenched that will then be used against you when it’s time to defend free speech rights. The ACLU is not defending white supremacist groups but instead is defending a principle — one that it must defend if it is going to be successful in defending free speech rights for people you support.

Beyond that, the contradiction embedded in this anti-free speech advocacy is so glaring. For many of those attacking the ACLU here, it is a staple of their worldview that the U.S. is a racist and fascist country and that those who control the government are right-wing authoritarians. There is substantial validity to that view.

Why, then, would people who believe that simultaneously want to vest in these same fascism-supporting authorities the power to ban and outlaw ideas they dislike? Why would you possibly think that the List of Prohibited Ideas will end up including the views you hate rather than the views you support? Most levers of state power are now controlled by the Republican Party, while many Democrats have also advocated the criminalization of left-wing views. Why would you trust those officials to suppress free speech in ways that you find just and noble, rather than oppressive?

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Leave aside the fact that the ACLU does expend vast resources to defend the rights of immigrants, minorities against abusive policing and a racist justice system, and Muslims. Beyond all that, the reason it’s vital to expend resources to defend free speech rights of awful people, even white nationalists, is because that’s where free speech battles are always and by definition fought.

It’s always those whose views are deemed most odious by the mainstream that are the initial targets of censorship efforts; it’s very rare that the state tries to censor the views held by the mainstream. If you allow those initial censorship efforts to succeed because of your distaste for those being targeted, then you lose the ability to defend the rights of those you like because the censorship principle has been enshrined.

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Then, finally, there’s the argument about efficacy. How can anyone believe that neo-Nazism or white supremacy will disappear in the U.S., or even be weakened, if it’s forcibly suppressed by the state? Is it not glaringly apparent that the exact opposite will happen: by turning them into free speech martyrs, you will do nothing but strengthen them and make them more sympathetic? Literally nothing has helped Yiannopoulos become a national cult figure more than the well-intentioned (but failed) efforts to deny him a platform. Nothing could be better designed to aid their cause than converting a fringe, tiny group of overt neo-Nazis into some sort of poster child for free speech rights.

The need to fight neo-Nazism and white supremacy wherever it appears is compelling. The least effective tactic is to try to empower the state to suppress the expression of their views. That will backfire in all sorts of ways: strengthening that movement and ensuring that those who advocate state censorship today are its defenseless targets tomorrow. And whatever else is true, the impulse to react to terrorist attacks by demanding the curtailment of core civil liberties is always irrational, dangerous, and self-destructive, no matter how tempting that impulse might be.

It should be noted that I disagree with the ACLU and Glenn Greenwald about their position on Citizen’s United. In my view, money is better stated as property than as speech, and therefore I view Citizen’s United as an increase in property rights for the rich more than as an issue of extending free speech. Citizen’s United — more aptly described as Corporations United — is in my view one of the worst Supreme Court decisions in history, being near or among the horrible rulings favoring slavery in rankings of awfulness.

That being said, the ACLU and Greenwald do strongly support free speech and freedom of nonviolent association more generally. I agree with them for that defense of theirs. Even when the speech is unpleasantly hateful, such as with what Nazis say, people failing to defend the right to peaceful expression is dangerous in itself. Sometimes speech is most important to protect when it’s despised the most.

Inciting physical violence is a different matter though, and there’s an crucial distinction that goes with it. That violence often infringes on the freedom other individuals have of free association, so it shouldn’t be equated with defending the more common and nonviolent expressions of free speech.