The #Resistance’s Next Target: The First Amendment

The American Civil Liberties Union has long been a darling of the left for its highly-visible courtroom battles on behalf of individuals’ civil rights. But following the election of President Trump, the ACLU is enjoying more visibility than any other time in its storied ninety-seven-year history. Its active membership has more than doubled, its fundraising has soared (for comparison, total online donations totaled $3.5 million in 2015, but raised $80 million in the eight months following the election), and their executive director, Anthony Romero, has been labeled the “face of the resistance.”

Just months after fostering the ACLU’s resurgence, the #Resistance is now wondering what all that money has bought them. The question became especially acute following the ACLU’s role in protecting the alt-right’s constitutional rights before and during the protest in Charlottesville.

Prior to the rally, the city of Charlottesville attempted to revoke a permit issued in June to local alt-right activist Jason Kessler, who sought to protest the planned removal of a statue of Robert E. Lee. The ACLU sued in federal court on behalf of Kessler, arguing that “a municipal government . . . has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The federal judge sided with Kessler, thereby preventing the city from revoking the permit.

Ultimately, the rally precipitated riots and violence, and ended with a Nazi-sympathizer ramming into a crowd, leaving one counter-protester dead and several injured.

“We must be clear. White supremacy is repulsive,” Speaker Paul Ryan tweeted after the riot. “This bigotry is counter to all this country stands for. There can be no moral ambiguity.”

Hatred and bigotry have no place in today’s political discourse. But several liberals seemed to place a degree of blame in a much different direction: The ACLU and the First Amendment. K-Sue Park writes in the New York Times:

The danger that communities face because of their speech isn’t equal. 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. Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.

The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power.

Others argued that the ACLU has “become the NRA of free speech,” that the organization “exploits the anachronistic nature of the First Amendment,” that they have “blood on their hands,” and their actions are equal to “confess[ing] to being white supremacists.”

What these and other critics fail to see is that the Charlottesville tragedy had nothing not do with the First Amendment and everything to do with hate. In fact, if there is a prophylactic to ensure that hatred and discrimination fail to flourish beyond the dark corners of a radical fringe, it’s the power of free speech. As the ACLU wrote in its defense of the Westboro Baptist Church’s Fred Phelps:

We do it because we believe in the principle, and because we realize that once you chip away at one person’s rights, everyone else’s are at risk. … Free speech doesn’t belong only to those we agree with, and the First Amendment doesn’t only protect speech that is tasteful and inoffensive. In fact, it is in the hard cases that our commitment to the First Amendment is most tested and most important. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”

Inevitably, the defense of free speech is hard in practice. It is often vile views that are sought ou to be unconstitutionally shut down. But nobody, given the history of the United States, should be willing to turn over the regulation of what is and isn’t speech worthy of protection to the government. After all, as David Cole, the national legal director of the ACLU writes in response to Park’s editorial:

“But allowing government officials to regulate speech based on their assessment of who is promoting equality or “on the wrong side of history” would be disastrous. How does Ms. Park think that Southern mayors would have used that power during the 1960s?”

The ACLU is often deserving of criticism for their casual politicking in favor of progressive causes. But there is nothing conservative nor liberal about defending the civil liberties enshrined in our Constitution, it’s a stance that should be stamped on all of our hearts. The fact that it’s not, the fact that the ACLU was forced to take a principled, unpopular stance in favor of free speech, is deserving of praise, even if it’s not coming from the usual choir.