Should the ACLU Defend White Supremacists in Court?

(This draft was written in early September 2017.)

The white supremacist murder of Heather Heyer in Charlottesville, and the massive wave of anti-racist counter-protests that followed it, seemed to blow the issue of free speech out of the water. After months of disingenuous posturing and “free speech rallies,” the truth became pretty clear to millions of people: the far right is not about free speech, and they will kill people who oppose them. Beaten back by thousands in Boston, San Francisco, and Berkeley, the far right has suffered a significant political defeat.

While this victory is great, the issue of free speech remains. The far right posturing on this, even if less effective, will continue: at my school, UC Berkeley, conservative students have reinvited far right provocateur Milo Yiannopoulos in late September for a “Free Speech Week.” With ongoing debates on the left about where we stand on free speech, it will be tricky (though still necessary) to form a broad but united front against white supremacy on campus. The issue can’t be avoided — and it shouldn’t be, because despite the far right posturing, free speech is actually very important for the left and we need to defend it.

A flashpoint in the debate was the American Civil Liberties Union’s (ACLU) defense of the free speech rights of Jason Kessler and other white supremacists in Charlottesville. On August 7, the city revoked their permit to rally on the 12th in Emancipation Park (which has the statue of Confederate General Robert E. Lee). Kessler, with a legal team that included the ACLU of Virginia, successfully sued the city and reinstated the permit. Given the white supremacist violence on the 12th, this free speech lawsuit seems farcical. Princeton professor Keeanga-Yamahtta Taylor, who has been threatened with death for her anti-racist speeches, argues that “despite their claims to only want to exercise their free speech rights, the white racists arrived in Charlottesville to riot, mob, and kill anyone who got in their way.” So did the ACLU effectively support or give cover for white supremacist violence by representing Kessler in his free speech lawsuit?

The left’s general position should be in defense of the right to free speech. We should be for the expansion of democratic rights and against giving the state more police powers. We should never ask the state to restrict speech, even with the intention of defending oppressed people. This is not a legal question about when speech crosses the line into harassment, incitement, or other unprotected areas. This is a political question. When we ask the state to defend us by restricting rights, we are forsaking the empowering opportunity to defend ourselves, and creating a precedent (legal and political) for the state to police us later.

For these reasons, we should not call on cities to revoke protest permits or increase requirements for permits. However, the ACLU went a step further. It didn’t just not call on Charlottesville to revoke the permit — it actively helped Kessler stop this revocation. Even if you agree with the general defense of free speech, the idea of being on the same side as white supremacists in any capacity might make you nauseous. And then even if the importance of free speech wins out, questions remain: to defend free speech generally, is it necessary to defend white supremacists in court? If so, what is the least harmful way to carry out this necessary evil?

The first thing to be clear about is that responsibility for the murder of Heather Heyer does not fall on the ACLU — it falls on James Fields and other far right thugs. Waldo Jaquith, who resigned from the ACLU of Virginia board in protest after the murder, misleadingly said that “when a free speech claim is the only thing standing in the way of Nazis killing people, maybe don’t take up that case.” It is fine to argue in this debate that the ACLU mistakenly helped the Nazis organize. But the violence itself is a result of the longtime emboldening of the far right, and despite its possible mistake here, the ACLU is on our side in this fight.

The ACLU, with some internal dissent, firmly believes that sometimes it is necessary to defend the right wing in court. It recently sued Washington, D.C. for the city’s policy of rejecting advertising on municipal transit that is “intended to influence public policy.” This is basically a ban on political ads, and the ban included a PETA ad, a nonprofit’s ad for an abortion pill, and an ACLU ad which was the text of the First Amendment. Also included in the lawsuit, however, was an ad for Milo’s new book. The ACLU defended this inclusion on the basis of the universality of free speech:

“To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together — whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.”

The ACLU also defended the Washington Redskins in court when the federal government, responding to an anti-racist movement, declared the “Redskins” name disparaging and canceled the team’s trademark. The ACLU agreed that the name “perpetuates racism against Native Americans” but didn’t think the “government [should] get to make that call.” It explained this by analogizing to the Asian-American band The Slants, which seeks to reclaim the “slants” racial slur. The band tried to get its name trademarked, but was rejected by the federal government for the same reason of disparagement. (In this case, the Supreme Court recently ruled that the anti-disparagement policy violated the First Amendment.)

Even when hate speech bleeds into possible incitement, the ACLU insists that the greater danger is allowing the state to police expression, pointing to historical examples:

“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.”

As a more recent example, on August 18 in Berkeley, the liberal city council used the threat of far right violence to give an unelected official, the city manager, broad emergency powers through the year to restrict unpermitted protests. There hasn’t been much outcry about this as an attack on free speech because the far right posturing has monopolized the free speech discussion. On August 27, seven thousand people participated in anti-hate demonstrations in Berkeley, all of which were unpermitted and thus potentially subject to increased state intervention.

In his defense of the ACLU, Glenn Greenwald summed up this position about defending free speech for everyone:

“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.”

Greenwald and the ACLU argue that to defend free speech, it is not enough to merely not ask the state to restrict speech. We must actively defend those whose speech is restricted, even and especially when they are our political enemies. These two positions — not calling for restrictions on right wing speech and actively defending right wing speech — have shared reasons: we want to broaden democratic rights and don’t want to give the state any discretionary power. However, active defense of right wing speech brings additional factors into play, and the ACLU has dropped the ball on those.

The first is the importance of accountability to the broad resistance that the ACLU is a part of. In the aftermath of the presidential election, the ACLU sold itself to millions of people as the legal bulwark against the Trump administration, and was widely praised for its fight against the Muslim ban. Its membership has quadrupled and it has received $83 million in online donations since the election, a fifteenfold increase over the normal amount. The problem with the ACLU centering itself in the movement like this is that it isn’t democratically accountable, and so it can (and does) do things that are politically contrary to where the rest of the movement is.

It’s fine and even good to have political disagreements in a broad movement, but these should be voiced openly. The ACLU has tended to misrepresent itself as simply a broad progressive legal organization, leaving out important political positions like on free speech. Its active defense of right wing speech in Charlottesville was then surprising and disorienting and has made it even harder to have the debate about free speech. Moreover, the ACLU’s decisions about which free speech cases to fight are unilateral, which undercuts democratic contributions as to how the resistance should approach the issue. For example, Keeanga-Yamahtta Taylor pointed out that the ACLU is, without explanation, ignoring the free speech cases of leftist professors:

“Progressives deserve the same speech protection as conservatives. The American Civil Liberties Union and the PEN organization have gone out of their way to defend the rights of provocative speakers like Milo Yiannopoulos and Ann Coulter to speak on campuses, but have been virtually silent on cases involving leftist or progressive faculty members who face suspension for provocative comments.”

This legal strategy effectively gives cover to the widespread lie that the major free speech issue on campus is about conservative speakers. That being said, it’s tricky to both defend free speech and rebut the right wing posturing on the issue, especially on campuses where liberal administrations have actually tried to stop far right provocateurs from speaking. The resistance would benefit from the ACLU democratically debating on and helping to a create a strategy to deal with this complicated situation, rather than making unilateral decisions that cause unnecessary harm.

That gets to a second factor involved in active defense of right wing speech, which is the necessity to not give ideological cover for the right wing. Greenwald is particularly insistent that the identity of the client be separated from the principled purpose of the legal defense, arguing that “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.” So, it is not necessary to defend white supremacy or hide its vileness in order to defend the rights of its advocates. However, in order to win and later justify the Charlottesville free speech lawsuit, the ACLU repeatedly understated the threat of white supremacists. This gives ideological cover for the far right, which is incredibly harmful.

For example, the lawsuit (to which the ACLU signed on) contains a “Statement of Facts” which states that “[Kessler] opposes both the name change [from Robert E. Lee Park to Emancipation Park] and the planned removal of the statue [of Lee]. To communicate his political message, Plaintiff sought to organize a “Unite the Right” rally in the Park to express opposition to both decisions by the City.” Every law student is taught in their first year that even your “Statement of Facts” should be crafted to portray your client in the best light. But that professional duty comes into conflict with the political duty to not give ideological cover for white supremacy, per Greenwald’s insistence on separating client from principle. Kessler is not simply an ordinary protester who wished to “communicate a political message.” He is an agent of the emboldening far right and is a major threat to oppressed people.

Back in May, Richard Spencer held a white supremacist rally in the same park, disturbingly reminiscent of the KKK: a large group of white men holding lit torches in the middle of the night, chanting Nazi slogans like “blood and soil.” Kessler’s lawsuit, however, retells this as merely an “unpermitted nighttime torchlit march … in which Plaintiff and others who plan to attend the August 12th rally participated.” This retelling removes the fright of open white supremacy in order normalize the idea of protesting in the park and giving Kessler the permit.

Notably, this lawsuit was filed just one day before the August 11 night march in Charlottesville, when hundreds of white supremacists with torches marched through the University of Virginia, chanting “blood and soil” and “Jews will not replace us.” They trapped Black clergy in a church and attacked a small group of students who protested against their intimidation. In the white supremacists’ next free speech lawsuit, will the ACLU describe this terrorist act as a “nighttime torchlit march”?

Moreover, in order to make the argument that the Charlottesville was being viewpoint-discriminatory in its treatment of Kessler, the lawsuit throws anti-racists under the bus. In July, the KKK rallied in Charlottesville and was outnumbered by counter-protesters. The police physically defended and escorted the KKK but attacked, teargassed, and arrested counter-protesters. Activists attended the next city council meeting to criticize the police actions. Kessler’s lawsuit flips this story to suggest his side is the victim of police partiality:

“When the City Manager began to respond to the public comments about the police actions at the July 8th event taken against counter-demonstrators during and after the Ku Klux Klan representatives were demonstrating, the crowd became disruptive, yelling “liar,” and the Mayor suspended the meeting rather than have police personnel remove those who were disrupting the City Manager’s comments.”

The ACLU seems to advocate that the police should have arrested anti-racists who were protesting police violence and a cover-up! In defending its representation of Kessler, the ACLU recapped that “[Kessler] swore under oath that he intended only a peaceful protest. … 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.” This naivete about the far right’s actual intentions and the role of the police is a serious political problem, not just a minor misstep in a legal document.

This ideological cover for the far right cannot be limited to that document — it bleeds into the politics of our struggle. For one, it sets a harmful legal precedent that diminishes the threat of white supremacy. This precedent can be used in other types of cases, like workplace or school harassment. For example, it will be easier for a judge to dismiss someone’s claim that they are suffering from a racist school environment if they can’t point to examples in the legal record that show the prevalence of open white supremacy on campus. The far right can officially legitimate its terrorist acts, like trapping Black clergy in a church, by pointing to the legal record which shows they are mere speech or “nighttime torchlit marches.”

The ACLU may be correct that the active defense of right wing speech is a necessary part of defending free speech generally. However, its unilateral approach to the issue is undemocratic and unacceptably giving ideological cover to the far right. Like every legal fight in the resistance, the approach to free speech in the courts must flow out of the movement. We have to win our fellow activists to a principled defense of the right to free speech and create a smart strategy of how to defend it. The ACLU should be open about its political positions and join that discussion in a democratic way.