This article will appear in the next issue of The New York Review.
Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesnt equality, also protected by the Constitution, take precedence?
After the tragic violence at a white supremacist rally in Charlottesville, Virginia, on August 12, these questions take on renewed urgency. Many have asked in particular why the ACLU, of which I am national legal director, represented Jason Kessler, the organizer of the rally, in challenging Charlottesvilles last-minute effort to revoke his permit. The city proposed to move his rally a mile from its originally approved siteEmancipation Park, the location of the Robert E. Lee monument whose removal Kessler sought to protestbut offered no reason why the protest would be any easier to manage a mile away. As ACLU offices across the country have done for thousands of marchers for almost a century, the ACLU of Virginia gave Kessler legal help to preserve his permit. Should the fatal violence that followed prompt recalibration of the scope of free speech?
The future of the First Amendment may be at issue. A 2015 Pew Research Center poll reported that 40 percent of millennials think the government should be able to suppress speech deemed offensive to minority groups, as compared to only 12 percent of those born between 1928 and 1945. Young people today voice far less faith in free speech than do their grandparents. And Europe, where racist speech is not protected, has shown that democracies can reasonably differ about this issue.
People who oppose the protection of racist speech make several arguments, all ultimately resting on a claim that speech rights conflict with equality, and that equality should prevail in the balance.* They contend that the marketplace of ideas assumes a mythical level playing field. If some speakers drown out or silence others, the marketplace cannot function in the interests of all. They argue that the history of mob and state violence targeting African-Americans makes racist speech directed at them especially indefensible. Tolerating such speech reinforces harms that this nation has done to African-Americans from slavery through Jim Crow to todays de facto segregation, implicit bias, and structural discrimination. And still others argue that while it might have made sense to tolerate Nazis marching in Skokie in 1978, now, when white supremacists have a friend in the president himself, the power and influence they wield justify a different approach.
There is truth in each of these propositions. The United States is a profoundly unequal society. Our nations historical mistreatment of African-Americans has been shameful and the scourge of racism persists to this day. Racist speech causes real harm. It can inspire violence and intimidate people from freely exercising their own rights. There is no doubt that Donald Trumps appeals to white resentment and his reluctance to condemn white supremacists after Charlottesville have emboldened many racists. But at least in the public arena, none of these unfortunate truths supports authorizing the state to suppress speech that advocates ideas antithetical to egalitarian values.
The argument that free speech should not be protected in conditions of inequality is misguided. The right to free speech does not rest on the presumption of a level playing field. Virtually all rightsspeech includedare enjoyed unequally, and can reinforce inequality. The right to property most obviously protects the billionaire more than it does the poor. Homeowners have greater privacy rights than apartment dwellers, who in turn have more privacy than the homeless. The fundamental right to choose how to educate ones children means little to parents who cannot afford private schools, and contributes to the resilience of segregated schools and the reproduction of privilege. Criminal defendants rights are enjoyed much more robustly by those who can afford to hire an expensive lawyer than by those dependent on the meager resources that states dedicate to the defense of the indigent, thereby contributing to the endemic disparities that plague our criminal justice system.
Critics argue that the First Amendment is different, because if the weak are silenced while the strong speak, or if some have more to spend on speech than others, the outcomes of the marketplace of ideas will be skewed. But the marketplace is a metaphor; it describes not a scientific method for identifying truth but a choice among realistic options. It maintains only that it is better for the state to remain neutral than to dictate what is true and suppress the rest. One can be justifiably skeptical of a debate in which Charles Koch or George Soros has outsized advantages over everyone else, but still prefer it to one in which the Trumpor indeed Obamaadministration can control what can be said. If free speech is critical to democracy and to holding our representatives accountableand it iswe cannot allow our representatives to suppress views they think are wrong, false, or disruptive.
Should our nations shameful history of racism change the equation? There is no doubt that African-Americans have suffered unique mistreatment, and that our country has yet to reckon adequately with that fact. But to treat speech targeting African-Americans differently from speech targeting anyone else cannot be squared with the first principle of free speech: the state must be neutral with regard to speakers viewpoints. Moreover, what about other groups? While each groups experiences are distinct, many have suffered grave discrimination, including Native Americans, Asian-Americans, LGBT people, women, Jews, Latinos, Muslims, and immigrants generally. Should government officials be free to censor speech that offends or targets any of these groups? If not all, which groups get special protection?
And even if we could somehow answer that question, how would we define what speech to suppress? Should the government be able to silence all arguments against affirmative action or about genetic differences between men and women, or just uneducated racist and sexist rants? It is easy to recognize inequality; it is virtually impossible to articulate a standard for suppression of speech that would not afford government officials dangerously broad discretion and invite discrimination against particular viewpoints.
But are these challenges perhaps worth taking on because Donald Trump is president, and his victory has given new voice to white supremacists? That is exactly the wrong conclusion. After all, if we were to authorize government officials to suppress speech they find contrary to American values, it would be Donald Trumpand his allies in state and local governmentswho would use that power. Here is the ultimate contradiction in the argument for state suppression of speech in the name of equality: it demands protection of disadvantaged minorities interests, but in a democracy, the state acts in the name of the majority, not the minority. Why would disadvantaged minorities trust representatives of the majority to decide whose speech should be censored? At one time, most Americans embraced separate but equal for the races and separate spheres for the sexes as defining equality. It was the freedom to contest those views, safeguarded by the principle of free speech, that allowed us to reject them.
As Frederick Douglass reminded us, Power concedes nothing without a demand. It never did and it never will. Throughout our history, disadvantaged minority groups have effectively used the First Amendment to speak, associate, and assemble for the purpose of demanding their rightsand the ACLU has defended their right to do so. Where would the movements for racial justice, womens rights, and LGBT equality be without a muscular First Amendment?
In some limited but important settings, equality norms do trump free speech. At schools and in the workplace, for example, antidiscrimination law forbids harassment and hostile working conditions based on race or sex, and those rules limit what people can say there. The courts have recognized that in situations involving formal hierarchy and captive audiences, speech can be limited to ensure equal access and treatment. But those exceptions do not extend to the public sphere, where ideas must be open to full and free contestation, and those who disagree can turn away or talk back.
The response to Charlottesville showed the power of talking back. When Donald Trump implied a kind of moral equivalence between the white supremacist protesters and their counter-protesters, he quickly found himself isolated. Prominent Republicans, military leaders, business executives, and conservative, moderate, and liberal commentators alike condemned the ideology of white supremacy, Trump himself, or both.
When white supremacists called a rally the following week in Boston, they mustered only a handful of supporters. They were vastly outnumbered by tens of thousands of counterprotesters who peacefully marched through the streets to condemn white supremacy, racism, and hate. Boston proved yet again that the most powerful response to speech that we hate is not suppression but more speech. Even Stephen Bannon, until recently Trumps chief strategist and now once again executive chairman of Breitbart News, denounced white supremacists as losers and a collection of clowns. Free speech, in short, is exposing white supremacists ideas to the condemnation they deserve. Moral condemnation, not legal suppression, is the appropriate response to these despicable ideas.
Some white supremacists advocate not only hate but violence. They want to purge the country of nonwhites, non-Christians, and other undesirables, and return us to a racial caste societyand the only way to do that is through force. The First Amendment protects speech but not violence. So what possible value is there in protecting speech advocating violence? Our history illustrates that unless very narrowly constrained, the power to restrict the advocacy of violence is an invitation to punish political dissent. 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. In addition to incitement, thus narrowly defined, a true threat against specific individuals is also not protected. But aside from these instances in which speech and violence are inextricably intertwined, speech advocating violence gets full First Amendment protection.
In Charlottesville, the ACLUs client swore under oath that he intended only a peaceful protest. The city cited general concerns about managing the crowd in seeking to move the marchers a mile from the originally approved site. But as the district court found, the city offered no reason why there wouldnt be just as many protesters and counterprotesters at the alternative site. 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.
What about speech and weapons? The ACLUs executive director, Anthony Romero, explained that, in light of Charlottesville and the risk of violence at future protests, the ACLU will not represent marchers who seek to brandish weapons while protesting. (This is not a new position. In a pamphlet signed by Roger Baldwin, Arthur Garfield Hays, Morris Ernst, and others, the ACLU took a similar stance in 1934, explaining that we defended the Nazis right to speak, but not to march while armed.) This is a content-neutral policy; it applies to all armed marchers, regardless of their views. And it is driven by the twin concerns of avoiding violence and the impairment of many rights, speech included, that violence so often occasions. Free speech allows us to resolve our differences through public reason; violence is its antithesis. The First Amendment protects the exchange of views, not the exchange of bullets. Just as it is reasonable to exclude weapons from courthouses, airports, schools, and Fourth of July celebrations on the National Mall, so it is reasonable to exclude them from public protests.
Some ACLU staff and supporters have made a more limited argument. They dont directly question whether the First Amendment should protect white supremacist groups. Instead, they ask why the ACLU as an organization represents them. In most cases, the protesters should be able to find lawyers elsewhere. Many ACLU staff members understandably find representing these groups repugnant; their views are directly contrary to many of the values we fight for. And representing right-wing extremists makes it more difficult for the ACLU to work with its allies on a wide range of issues, from racial justice to LGBT equality to immigrants rights. As a matter of resources, the ACLU spends far more on claims to equality by marginalized groups than it does on First Amendment claims. If the First Amendment work is undermining our other efforts, why do it?
These are real costs, and deserve consideration as ACLU lawyers make case-by-case decisions about how to deploy our resources. But they cannot be a bar to doing such work. The truth is that both internally and externally, it would be much easier for the ACLU to represent only those with whom we agree. But the power of our First Amendment advocacy turns on our commitment to a principle of viewpoint neutrality that requires protection for proponents and opponents of our own best view of racial justice. If we defended speech only when we agreed with it, on what ground would we ask others to tolerate speech they oppose?
In a fundamental sense, the First Amendment safeguards not only the American experiment in democratic pluralism, but everything the ACLU does. In the pursuit of liberty and justice, we associate, advocate, and petition the government. We protect the First Amendment not only because it is the lifeblood of democracy and an indispensable element of freedom, but because it is the guarantor of civil society itself. It protects the press, the academy, religion, political parties, and nonprofit associations like ours. In the era of Donald Trump, the importance of preserving these avenues for advancing justice and preserving democracy should be more evident than ever.
August 24, 2017
Read the original here:
Why We Must Still Defend Free Speech – The New York Review of Books
- UC Berkeley chancellor's message on free speech - Washington Post - August 25th, 2017
- YouGov | Americans wary of extending free speech to extremists - YouGov US - August 25th, 2017
- With all-hands-on-deck police action, Bay Area cities prepare for 'free speech' rallies - The Mercury News - August 22nd, 2017
- The Assault on Free Speech - Wall Street Journal (subscription) - August 22nd, 2017
- Free Speech & Firearms - Commonweal - August 22nd, 2017
- Boston "free speech" rally ends after counter-protesters take ... - August 20th, 2017
- ACLU takes heat for its free-speech defense of white ... - August 20th, 2017
- Thousands of Leftists Expected to Torpedo Boston Free Speech ... - August 20th, 2017
- Boston Prepares for Free Speech Rally and Counterprotests ... - August 20th, 2017
- Far outnumbered, Boston 'Free Speech' rally ends early - August 20th, 2017
- The Second City's Free Speech! (While Supplies Last) - August 20th, 2017
- Counterprotesters swarm Boston after police deem free ... - August 20th, 2017
- As a 'free speech' rally fizzled, a march for unity triumphed - The Boston Globe - August 20th, 2017
- Boston free speech rally ends early amid flood of ... - August 20th, 2017
- What Europe Can Teach America About Free Speech - The Atlantic - August 20th, 2017
- Boston rally touting free speech: Live updates - CNN - August 20th, 2017
- The Gunmen at 'Free Speech' Rallies - New York Times - August 20th, 2017
- Conservative Provacateur Yiannopoulos Attending 'Free Speech ... - CBS San Francisco Bay Area - August 20th, 2017
- Colleges grappling with balancing free speech, campus safety - wreg.com - August 20th, 2017
- Tensions grow inside ACLU over defending free-speech rights for the far right - Los Angeles Times - August 18th, 2017
- Free speech might be coming to Berkeley in a shocking turn of events - Washington Examiner - August 18th, 2017
- Silicon Valley and Free Speech: Tim Cook Edition - National Review - August 18th, 2017
- The far-left strikes another blow against free speech - Washington Examiner - August 18th, 2017
- Speaker list for 'free speech' rally includes right-wing extremists - The Boston Globe - August 18th, 2017
- Instagram CEO Kevin Systrom on Free Speech, Artificial Intelligence, and Internet Addiction. - WIRED - August 18th, 2017
- Toronto university cancels 'free speech' event after Charlottesville - BBC News - August 18th, 2017
- 'Free speech' rally in Boston gets its permit with stiff restrictions - The Boston Globe - August 16th, 2017
- Who is the Boston Free Speech Coalition behind Saturday's rally? - The Boston Globe - August 16th, 2017
- UC Berkeley chancellor unveils 'Free Speech Year' as right-wing speakers plan campus events - Los Angeles Times - August 16th, 2017
- Free speech, abhorrent or not, must be protected - Miami Herald - August 16th, 2017
- The case against free speech for fascists - Quartz - August 15th, 2017
- Factbox: When can free speech be restricted in the United States? - Reuters - August 15th, 2017
- As Boston Prepares For Demonstrations, Here's What We Know About 'Free Speech' Rally Organizers - WBUR - August 15th, 2017
- Tech companies in the crosshairs on white supremacy and free speech - Reuters - August 15th, 2017
- Free speech a focus as Christ starts year as Berkeley's chancellor - Inside Higher Ed - August 15th, 2017
- Speakers at 'free speech' rally dropping out - The Boston Globe - The Boston Globe - August 15th, 2017
- Is Freedom of Speech really free? 2 Sacramento experts explain - KCRA Sacramento - August 15th, 2017
- Neo-Nazis have the right to free speech. They don't have the right to deny it to the rest of us - Quartz - August 15th, 2017
- Opinion Journal: Free Speech in Charlottesville - Wall Street Journal - Wall Street Journal (subscription) - August 15th, 2017
- 'No Free Speech for Fascists' Is a Truly Terrible Idea - Hit & Run ... - Reason (blog) - August 14th, 2017
- 'Free-speech' rally set for Boston has some concerned - The Boston ... - The Boston Globe - August 14th, 2017
- The 'Free Speech' Hypocrisy of Right-Wing Media - New York Times - August 14th, 2017
- Silicon Valley Tightens Its Grip on Free Speech - LifeZette - August 14th, 2017
- Militia chief says his group sought to guard free speech at Unite the ... - The Daily Progress - August 14th, 2017
- Boston protests ahead of 'free speech rally' | Boston Herald - Boston Herald - August 14th, 2017
- How we communicate is changing. So should the way we think ... - Washington Post - August 13th, 2017
- The virtue of free speech - Times-Enterprise - August 13th, 2017
- Stewart: Charlottesville will prompt liberal 'crackdown' on free speech - Fauquier Times - August 13th, 2017
- Canadian Google crackdown illustrates need to protect free speech online - The Hill (blog) - August 13th, 2017
- Man convicted for disrupting Teton County women's march, free speech not at issue - East Idaho News - August 13th, 2017
- Corporations are cracking down on free speech inside the office and out - Washington Post - August 11th, 2017
- A Campus Free Speech Comeback - RealClearEducation - August 11th, 2017
- SMU reverses decision to move 9/11 memorial after free speech controversy - USA TODAY - August 11th, 2017
- Free-Speech Debate Swirls As Officials Block On Social Media - 89.3 WFPL - August 11th, 2017
- FEC 'reform' a smokescreen to weaponize government against free speech - The Hill (blog) - August 11th, 2017
- Free-speech debate swirls as officials block on social media - ABC News - August 10th, 2017
- Google memos and pro-Trump cakes: When free speech values collide - The Hill (blog) - August 10th, 2017
- Freedom of Speech Is Not Enough - Wall Street Journal (subscription) - August 10th, 2017
- Charlottesville and Airbnb are wrong to attack white supremacist free speech - Washington Examiner - August 10th, 2017
- Of Course James Damore Is Now a Free Speech Martyr - Slate Magazine - August 9th, 2017
- Editorial: Anti-boycott bill threatens free speech - The Recorder - The Recorder - August 9th, 2017
- Lena Dunham & Google Demonstrate Eroding Free Speech Culture ... - National Review - August 9th, 2017
- 'Secularism, Free Speech' In Danger: Sonia Attacks BJP-RSS, Says They Played 'No Role' In Freedom Struggle - Outlook India - August 9th, 2017
- The biggest threat to free speech? It's the left - The Boston Globe - August 8th, 2017
- Chelsea Handler calls for free speech curbs, laws against 'people who think racism is funny' - Washington Times - August 8th, 2017
- Why Arab Rulers Detest Free Speech - HuffPost - August 8th, 2017
- Anti-boycott bill threat to free speech - GazetteNET - August 8th, 2017
- Joe Medley: NFL players should unite for free speech - Anniston Star - August 8th, 2017
- George Washington Could Teach Trump A Lot About Free Speech - Daily Beast - August 6th, 2017
- ACLU Sounds Alarm Over Trump Administration's 'Threat' To Free ... - HuffPost - August 5th, 2017
- University of Toledo raises free-speech grade - Toledo Blade - August 5th, 2017
- Campus free speech politics settles in North Carolina - Greenville Daily Reflector - August 5th, 2017
- NC passes first Goldwater-based free speech law - Campus Reform - Campus Reform - August 4th, 2017
- Anti-Trump Protesters Target Benson, Coulter at Politicon Free ... - Fox News Insider - August 3rd, 2017
- The Campus-Speech Debate Spends Summer Break in Statehouses - The Atlantic - August 3rd, 2017
- Ann Coulter interrupted by 'Nazi' protesters at free speech panel - Campus Reform - August 2nd, 2017
- Nazi-clad protesters try shouting down Ann Coulter at free-speech panel and are badly outnumbered - TheBlaze.com - August 2nd, 2017
- Harsanyi: Be worried about the future of free speech - The Detroit News - August 1st, 2017
- Free Speech, Safe Spaces Hot Topics at Politicon - Diverse: Issues in Higher Education - August 1st, 2017
- This Anti-BDS Bill Is an Assault on Free Speech - Truth-Out - August 1st, 2017