Maybe Don’t Give the Klan’s Lawyers Money?

Or, why a content-neutral defense of free speech is no virtue, and censorship of hate speech is no vice.

The ACLU has to be the only civil rights firm in the country that chooses its test cases by looking for the least sympathetic clients they can find. That line “I may not agree with what you said, but I’ll defend to the death your right to say it” is certainly a clever turn of phrase, but that doesn’t mean anyone actually has to defend speech they disagree with, or that choosing to defend morally repugnant views is praiseworthy (or even acceptable) so long as you’re you’re doing so in the name of free speech. Free speech is only as good as the speech itself, and censorship is only bad in inverse proportion to the views being censored.

We have no trouble understanding of this when it comes to non-state actors. The Google engineer who was fired for distributing a memo for saying women were too dumb to work there. was being censored. The fact that it was a corporation censoring him and not the government is immaterial. As evidence, consider how few people are willing to defend or oppose both the Google firing and the NFL’s ongoing blacklisting of Colin Kaepernick on a free speech basis. No one is basing their opinion on the suppression of speech itself, just the content. Likewise, the people on Twitter who studied press photos of the Charlottesville rally to figure out the participants’ names and workplaces so they can get them fired are working to suppress the Charlottesville Nazis’ free speech much more than the parks official who denied them their permit. If the folks on Twitter succeed, the Nazis could be thrown into poverty just for expressing a viewpoint, but if the city had won in court, the worst they’d have to suffer is marching in a different venue. And lest we forget, no one’s speech was chilled more in Charlottesville than the protester who was run down and killed for protesting Nazis. She wasn’t the ACLU’s client; she was protesting the ACLU’s client, and she would more than likely still be alive if the ACLU hadn’t taken the case.

Now, to be clear, I’m not saying the government should be able to shut down speech the people in power find objectionable. But that’s not because all viewpoints are valuable, or even that society is better when all views are vigorously debated in the public square. After all, what has society gained from the debate about the authenticity of President Obama’s birth certificate, or the safety and efficacy of vaccines, or whether women are smart enough to be engineers? No, the reason the First Amendment is valuable is that government can’t be trusted with the power to determine what views are acceptable to hold and express, because they will sometimes use it to suppress ideas that are genuinely worthwhile.

The purpose of the law and of government and our role as citizens isn’t to uphold some Platonic ideal of virtue. It’s to create a better world and better lives for the people in it. The ACLU’s defense of avowed white supremacists utterly fails by this metric. If they devoted to the resources they currently use protecting the First Amendment rights of Nazis to protecting non-hateful speech, the net impact would be 1) greater protection for speech that actually adds value to society and 2) either less hate speech or (more likely) fewer resources available for the sorts of people who pony up to protect hate speech because they like its content. That world would be a better than this one in every particular. They’re perfectly capable of establishing the legal precedents that would protect speech in general with test cases that involve actual worthwhile speech. There’s plenty of those in every state, district, and circuit in the country. Nevertheless, they choose to use their limited resources ensuring that Nazis in particular can spew hate speech.

Let me close with the following thought experiment. Suppose you’re a liberal who’s a steadfast donor to the ACLU. Now suppose they decide they’re sick of going to court to defend the free speech rights of white supremacists and they announce that the percentage of their budget that goes to Bigotry Protection will be refunded to donors pro rata. Further suppose that the Ku Klux Klan announces that because they can no longer count on the ACLU to defend them, they’ll set up a separate legal defense fund that will only be used to defend their First Amendment rights in court (as verified by an independent auditor). Once you get your refund, do you cut a check to the Ku Klux Klan Legal Defense Fund? If you learned that a friend had donated to the KKKLDF, would you want to remain friends with them? I’m quite confident that the answer is no to both questions (if not, kindly go fuck yourself). But if you’re willing to help fund lawyers for the Klan, why does it matter which organization’s name is on the check? After all, the precedents that the KKK wins on its own behalf are just as binding in support of non-racist speech as the ones the ACLU wins for them. And if you’d be disgusted with your friend for contributing to the Klan, why are you okay with the ACLU doing it?