When defending free speech means supressing the speech and safety of others.
Image by Anadolu Agency via Getty Images.
By now, you’ve heard the story: White nationalist protesters assembled in Charlottesville, Virginia, this weekend around Emancipation Park, where a statue of Robert E. Lee, a Confederate general, was set to be taken down. The protesters carried torches, and the rally quickly turned violent; a woman died and 19 people were injured when radical extremist James A. Fields drove his car into a crowd. And the gathering likely wouldn’t have taken place at all if it weren’t for the American Civil Liberties Union, which came to the defense of the rally’s organizer, James Kessler, when his permit for the event was initially revoked by the city.
Despite the fact that even Kessler admitted that violence was anticipated at the protest, the ACLU convinced U.S. District Court Judge Glen E. Conrad that the protest should be allowed to continue on the grounds that the city “left in place the permits issued to counter-protestors ... [constituting] a content-based restriction of speech.”
That the ACLU would support neo-Nazis came as a surprise to many of its supporters, who have come to link the nonpartisan organization with the resistance. The night of Donald Trump’s inauguration, the ACLU received more than $24 million in online donations — a record-breaking weekend — from around 365,000 donors.
Those early days of the presidency felt exceptionally frightful, our everyday lives suddenly tense with the expectation of something new and terrible. We needed a hero, someone outside the institutional confines of government, to protect us from what was surely coming: an onslaught on our civic rights and threats to our livelihoods. To many people, the ACLU was a worthy candidate.
But all those new donors probably didn’t expect the ACLU to support either the rally in Charlottesville or the lawsuit filed last week by the organization on behalf of Milo Yiannopoulos, the impish “provocateur” who has made a career stoking hatred and violence against almost any marginalized group he felt compelled to name. The suit pits Yiannopoulos against The Washington Metropolitan Area Transit Authority for removing ads for Yiannopoulos’s book (“Dangerous,” which reportedly sold fewer than 18,300 copies in the U.S.) as well as ads for PETA and Carafem (a family planning organization that also provides abortion care).
Because the D.C. transit authority is a government agency, they prohibit the display of ads that might be perceived as “political.” In a blog post explaining the ACLU’s decision on Yiannopoulos, James Esseks (director of their LGBT and HIV Project), argues that these organizations represent a “range of views.”
“From an organization promoting free speech, another advocating for reproductive health care, another urging protection of animals, and another peddling what the ACLU believes to be anti-trans, anti-Black, anti-woman, and anti-Muslim views. That speaks to a core premise of the First Amendment: If government can shut down one of those views, it can shut down all of them.”
But in that very same post, the ACLU itself does a pretty good job listing all the ways in which Yiannopoulos differs from the other defendants. For example:
“He has claimed that the very existence of transgender people is the product of delusional thinking. He has compared Black Lives Matter activists to the KKK.And he has fostered both anti-Muslim bias and disdain for women in one breath, characterizing abortion as ‘so clearly bad for women's health that it falls second only to Islam.’”
Yiannopoulos speaks outside Simon & Schuster offices in July 2017. Yiannopoulos is promoting a new book and filing a $10 million legal complaint against Simon & Schuster after the publisher's decision to cancel his book deal. Photo by Drew Angerer/Getty Images
While PETA may have its problems (numerous ones), the way it differs from both Yiannopoulos and and the white supremacists in Virginia over the weekend is that it has never used language that could stoke physical attacks and violence against vulnerable groups.
[quote position="full" is_quote="true"]Free speech is an important civic right, one that we need to protect — but to ignore the role that power plays in the distribution of justice is to be willfully ignorant.[/quote]
The ACLU has defended hate groups time and again, perhaps most notably in 1978, when it stood up for a neo-Nazi group intending to march through a Chicago suburb that was home to several Holocaust survivors, arguing that the right to free speech and assembly should apply to all, no matter the cause. But then, as now, free speech is an important civic right, one that we need to protect — but to ignore the role that power plays in the distribution of justice is to be willfully ignorant.
Kessler, the white supremacists who joined him, and Yiannopoulos all benefit from a system that privileges their right to speak over others because they are white (and many of them are male). Meanwhile, they have contributed to a culture that has made it difficult for Muslims to practice their faith openly or for black activists to vocally condemn police violence in their communities.
At least one attorney at the ACLU recognizes this. Staffer Chase Strangio posted a message to Twitter earlier this week condemning the ACLU’s decision to protect Yiannopoulos’s platform:
“The first Amendment is critical in protecting the ability of marginalized communities to protest, mobilize and build power. But it has already been eroded for those communities. The ability to speak and protest and disrupt is already affected by one’s race, class, immigration status, religion, and gender ... Milo’s actions may not meet the legal definition of incitement but he acts in a world in which people already feel authorized to demean, attack and dispose of the bodies and lives of so many.”
In the past week, there have been many arguments made to defend the ACLU — among them Glenn Greenwald’s in The Intercept and German Lopez’s for Vox. Both of these pieces point out the ACLU’s broad history of defending the free speech rights of everyone universally — including, Greenwald notes, accused al-Qaida terrorists. But this example fails to make his point because it also ignores America’s Islamophobic political climate and its national security apparatus that preys on and scapegoats Muslim communities.
The ACLU is not a government entity. It’s a nonprofit organization that should exist to fill the holes in our justice system — a justice system that has frequently privileged the rights of white supremacists over those of the vulnerable communities that, by definition, hate speech targets.
We reached out to the ACLU of Virginia for comment, and they directed us to the statements posted on their site: “What happened today had nothing to do with free speech,” they wrote in a statement posted early this week. “It devolved into conduct against individuals motivated by hate that was initially thuggish, and ultimately, deliberately murderous.”
But it was clear from the beginning that this was not a protest but a provocation — when your free speech comes dressed in paramilitary gear, violence is not a possibility. It's a promise.