In an announcement that surely disappointed its recent clients in Charlottesville, Virginia, the American Civil Liberties Union said on Friday that it would no longer defend armed hate groups. The change in policy followed the ACLU of Virginia’s decision to file suit to ensure that an assortment of white supremacist groups could hold the now-notorious “Unite the Right” rally earlier this month in Charlottesville’s Emancipation Park. While the ACLU wasn’t responsible for the fatal violence that ensued, the entire organization was convulsed in the fallout. One ACLU of Virginia board member resigned in protest. In a historic gesture, three California affiliates broke with the Virginia branch and the national organization to condemn the lawsuit. “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution,” they said.
The ACLU’s national leadership ultimately agreed. “If a protest group insists, ‘No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them. They can find someone else,” executive director Anthony Romero told The Wall Street Journal. Romero claimed that this was consistent with the organization’s position on gun control. On Twitter, one ACLU attorney insisted that the new policy was in sync with older concerns about defending armed groups:
In a statement to the New Republic, an ACLU spokesperson said the new policy will be applied on a “case by case” basis, meaning greater scrutiny will be applied to possible clients. “If we determine that any potential client intends to subvert their rights under the First Amendment to cause violence, we wouldn’t represent them. The First Amendment doesn’t protect violence, that hasn’t changed,” Noa Yachot said.
Still, it’s undeniable that the group’s new policy is a softening of what has been held up as a timeless, impartial principle of American democracy. It seems like a radical gesture for radical times, an admission that Charlottesville had pit competing claims to free expression against each other. The ACLU’s compromise balances its historical absolutism with pragmatism. But it also raises a question: Is it ever possible to define, and then fairly restrict, dangerous speech?
Free speech absolutists say it’s impossible. Any attempt to define dangerous speech is a slippery slope for future acts of censorship, they claim, and the ACLU’s own case history is a model for this position. In 1978, it famously filed suit on behalf of a neo-Nazi group when the town of Skokie, Illinois, tried to ban them from marching through the center of town; the ACLU reportedly lost 10,000 members over the decision. It also defended the North American Man/Boy Love Association, Oliver North, and a Santeria church that practices ritual animal sacrifice. And it stood up for the civil rights of minorities threatened by the policies of Donald Trump, leading to a surge in membership and donations over the past year.
Even post-Charlottesville, some legal experts say the organization should maintain its absolutist stance. “It is not the role of government to silence ideas, no matter how hateful or repugnant many of us might feel they are,” Gene Policinski, an attorney and chief operating officer of the Newseum Institute, told the New Republic. “And that is not said lightly. It is no small task, as we saw in Charlottesville, to prevent violence or avoid bloodshed or even death. But that is the test of our commitment to free speech.”
Caroline Mala Corbin, who teaches at the University of Miami School of Law and has worked for the ACLU, explained, “The most persuasive free speech justification for this protection is not that white supremacists have anything worth saying. They don’t. Rather, it is that we do not trust the government to make decisions about who should be allowed speak and who should not.”
But the ACLU’s recent policy change also responds to fears that the absolutist position chills the free speech of others. In The New York Times last week, K-Sue Park echoed the criticism expressed by the ACLU’s California affiliates. “The danger that communities face because of their speech isn’t equal. The ACLU’s decision to offer legal support to a right-wing cause, then a left-wing cause, won’t make it so,” Park argued. “Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.”
Several factors distinguish our contemporary crisis from its antecedents. The alt-right and neo-Nazis and other sundry strains of white supremacy now saturate the internet with their propaganda. They are no longer marginal voices shouting slogans to the residents of Skokie. Furthermore, they are radicalizing whites online, much as ISIS radicalizes its recruits. However, that is not necessarily a reason to restrict speech, Policinski said. “If on a pragmatic level it was ever possible to silence an idea, or to silence a speaker in the name of some admirable quality, it’s impossible to do that in the internet age,” he explained. “So I think it fails on both the sort of 30,000-foot constitutional view, but it also fails on a very ground-level pragmatic test.”
American gun laws alter the equation further. In Charlottesville, white supremacists marched with guns and other weapons, and this is not an anomaly. In Texas, armed militia members accompanied the This is Texas Freedom Force to an San Antonio city council meeting in protest of proposals to remove a Confederate statue from a local park. White supremacists have committed multiple acts of violence since Trump’s election in November: Jeremy Christian allegedly murdered two bystanders in Portland, Oregon, after they interfered with his racial harassment of two women; in Seattle, a supporter of Milo Yiannopoulos shot a left-wing counter-protester; in Charlottesville, James Fields drove into a crowd of counter-protesters, killing one.
At Slate, Dahlia Lithwick and Mark Joseph Stern recently noted that Charlottesville police had warned Judge Glen E. Conrad that white supremacist protesters would be carrying weapons—a warning Conrad eventually disregarded in favor of a free speech argument, rejecting the city’s suit to move the rally elsewhere. “Ironically, by protecting the free speech rights of the white supremacists, Conrad may have ultimately suppressed speech by ensuring an armed confrontation between the neo-Nazis and the counter-protesters would break out and that police would be powerless to stop it until blood was spilled,” they argued.
Finally, the Trump presidency itself provides white supremacists with the imprimatur of legitimacy. With a champion in the White House, the balance of power has tipped firmly in their favor. White supremacists don’t have much reason to fear a Justice Department headed by Jeff Sessions, while Trump’s rhetoric energizes them. “We are going to fulfill the promises of Donald Trump. That’s what we believed in,” former KKK leader David Duke said in Charlottesville, hours before Fields launched his deadly rampage.
If anything, this political climate chills free speech for those on the left, not white supremacists. “The ACLU argues that free speech is a necessary precondition for equality,” said Corbin. “But equality is actually a necessary precondition for truly free speech, and we don’t have that.” Separately, but similarly, Lithwick and Stern wrote, “Rallies with guns cannot be treated, for First Amendment purposes, in the same fashion as rallies with no guns.”
After the end of World War II, Germany tried to prevent the rebirth of the Nazi party by banning it. Strafgesetzbuch section 86a prohibits the display of Nazi symbols, films, and art. As an attempt to reckon with an inhumane past, the law makes sense. Two Chinese tourists were arrested earlier this month for performing a Nazi salute at the Reichstag, and yet few would say Germany is an unfree place when it comes to speech. It raises the interesting possibility that a true reckoning with horrific atrocities—whether these involve genocide or slavery—requires certain limits on speech.
But for all that, neo-Nazi groups still exist in Germany. They’ve become bolder, even, in response to an influx of mostly Muslim refugees from the Middle East. And though the ban does apply to iterations of the Nazi party, it hasn’t prevented the formation of parties like Alternative for Germany (AfD), which barely disguises its white supremacist sympathies. In a recent position paper, the group recommended canceling aid to asylum seekers and urged the German navy to return refugees to their home countries. “German interests must be guiding principles and not that whoever happens to be visiting here right now gets some sort of development program,” AfD spokesman Alexander Gauland said. “It’s not always America First. Sometimes it’s Germany First.”
And as Joshua Keating noted for Slate in 2015, the ban sometimes backfires in unexpected ways. “Nazi-era propaganda films—some of which are literally locked away in heavily guarded vaults—have become cult classics in Germany, not just among skinheads, who hold Rocky Horror-like screenings of some of them, but among curious cinephiles as well,” he wrote.
Still, Germany’s ban recognizes that speech can harm. We have witnessed the same phenomenon here: Crimes like Jeremy Christian’s correlate to a general rise in speech targeting minority groups. According to a 2016 report from the Center for the Study of Hate and Extremism at California State University, San Bernardino, hate crimes against Muslims spiked by 78 percent in 2015. As HuffPost reported at the time, that figure coincided with the launch of Trump’s xenophobic campaign for president. Hate crimes targeting LGBT people have also been linked to rhetoric that dehumanizes and stigmatizes.
This is all compelling proof that absolutists may have to re-examine their arguments. Above all, Trump’s presidency supports the notion that no law, even when it is enshrined in the Constitution, can alone justify an absolute position on free speech. That position has to be bolstered by strong cultural norms, including a consensus that the president must not legitimize and amplify the speech of those who openly bear the swastika and believe that other races are inferior to the white race. Free speech isn’t a pure and abstract good. Like all civil liberties, it is shaped by the context in which it occurs. The ACLU’s announcement may simply reflect an unsettling reality.