AUG. 23, 2017 — When white supremacists wanted to hold a “Unite the Right” rally at the site of a Robert E. Lee monument in Charlottesville, the Virginia city insisted they gather in a different park. So the neo-Nazis got help from an organization widely vilified on the far right: the American Civil Liberties Union. It sued the city, and a federal judge ruled in its favor. The hateful assembly occurred where it was originally planned.
We all know what happened next. Fighting broke out between protesters and counter-protesters, and a woman was killed after being run over by a car driven by an alleged white nationalist.
The backlash against the ACLU was immediate. Waldo Jaquith resigned from the board of directors of the organization’s Virginia chapter, declaring: “What’s legal and what’s right are sometimes different. I won’t be a fig leaf for Nazis.” K-Sue Park, a fellow at the UCLA School of Law who has done volunteer work for the ACLU, wrote in The New York Times, “By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes.”
But anyone who was surprised that the ACLU would represent such extremists has not been paying attention. The organization endured a storm of criticism and canceled memberships in 1977, after it sued to force the Chicago suburb of Skokie to allow neo-Nazis to march. It has gone to court to defend the right of the anti-gay Westboro Baptist Church to protest at military funerals. It sued the Washington, D.C., transit system on behalf of alt-right troll Milo Yiannopolous because the system banned ads for his new book.
The ACLU defends the rights of ideological outliers because it believes, correctly, that the Constitution protects free expression no matter how repellent that speech may be. America doesn’t need a First Amendment to ensure the freedom of popular speakers to voice their opinions because those don’t get suppressed. We need the amendment to ensure the freedom of speakers whose views are despised by people who dominate agencies of government.
Without the First Amendment, the white supremacists might have been out of luck in Charlottesville. But in many parts of the country, in the absence of constitutional protection, organizations devoted to racial justice or abortion rights might be suppressed.
Liberal commentator Glenn Greenwald noted the myopia at work. “Most levers of state power are now controlled by the Republican Party, while many Democrats have also advocated the criminalization of left-wing views,” he wrote in The Intercept, addressing those on the left. “Why would you trust those officials to suppress free speech in ways that you find just and noble, rather than oppressive?”
By protecting freedom of expression on the right, the ACLU bolsters it for everyone — including the “anti-fascist” groups that often show up to demonstrate against right-wing speakers.
The First Amendment, of course, does not protect violence or threats of violence. Cities are entitled to set reasonable rules to safeguard public safety. The permit for last Saturday’s “free speech” rally in Boston, for example, prohibited backpacks, sticks, cans, glass containers and any “other item that could be used as a weapon.”
Local officials are also obligated to deploy police to keep opponents separated and head off dangerous clashes. Any speaker who tries to incite immediate violence can be arrested.
Allowing open debate, however, is essential to a free and democratic society, even when it includes noxious speakers. Thomas Jefferson wrote, “We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”
Thanks to the Constitution, the white supremacists who showed up in Charlottesville and Boston had their say. But in doing so, they only stimulated a national debate that they are bound to lose.