Opinion: Consistent, and Meaningful, Defense of First Amendment Fee Expression Must Include Even White Supremacists

Posted on August 19, 2017

In the wake of the horrific and senseless attack on peaceful anti-white supremacist protesters by a white supremacist supporter in Charlottesville, Virginia, the progressive movement, and Americans across the political spectrum, are understandably in shock. But while tragedies such as this inspire a natural and understandable urge to take steps to stem future attacks, in our haste to gird our civic society against the hateful ideologies that encourage violence, we risk unwittingly setting the stage for more deleterious civic consequences later.

Glenn Greenwald, in his opinion piece for The Intercept this week, makes precisely this case in his defense of the ACLU against vociferous calls for them to abandon their defense of white supremacist organizations to legally protest in Charlottesville, and other municipalities that seek to deny them permits . One can certainly sympathize with the desire to deny white supremacists a public platform on which to advocate their hateful views, but empowering government bodies to wield state power for the purpose of prohibiting groups, however extreme, from peaceable assembly in public spaces sets a worrying precedent which will almost certainly, over time, be invoked to curtail the rights of other groups, e.g. Black Lives Matter. 

What opponents of hate groups often don’t immediately appreciate in cases such as this, in which a civil rights organization defends a hate group in court, is that the rights organization is not defending the hate group but, rather, the civil liberty that the persecution of that group threatens to erode. As Greenwald notes, “the ACLU is not defending white supremacist groups but instead is defending a principleone that it must defend if it is going to be successful in defending free speech rights for people you support.”

Constitutional rights are, by nature, extended and enjoyed communally—if a right is afforded only to certain groups, then it is not really a right but a privilege that the state grants to those whom it favors at the expense of the rest. The unfortunate truth of this reality is that, if rights are enshrined as the integrity of civic society demands, they will invariably also protect those who would seek to use it for hurtful ends. The impulse to respond by stripping these groups of their rights is immediately gratifying, and may even waylay their movement, but it only opens the door for future public servants (or even future whims of the present ones) to do the same to movements we regard as constructive.

In fact, we need not even wait for a future presidential administration to see evidence of an inclination to persecute peaceful progressive causes. Earlier this week, the US Department of Justice issued a search warrant to compel an internet hosting company to hand over the IP address records of millions of visitors to a peaceful anti-Trump protest website that it hosted. Is there any reason to think that the Trump administration would not use the power to deny a group the right to protest on public property against organizations or movements, like this one, which President Trump opposes? Greenwald poses precisely this question in his piece: “Most levers of state power are now controlled by the Republican Party, while many Democrats have also advocated the criminalization of left-wing views. Why would you trust those officials to suppress free speech in ways that you find just and noble, rather than oppressive?”

This specter of Republican restriction of First Amendment freedoms is to say nothing of the current bipartisan efforts to curtail the free speech rights exercised by progressive movements. Both the US Senate and House of Representatives are considering legislation which would make it a criminal offense to participate in, or advocate in favor of, the pro-Palestinian Boycott, Divest, Sanctions movement, with sentences as harsh as $1 million in fines and 20 years in federal prison. The bill, known as the Israel Anti-Boycott Act, already enjoys broad support across both parties, so should citizens empower their representatives in Congress to censor white supremacists, there would be little standing in the way of the passage and enforcement of this draconian criminal statute. 

As regrettable as it is that white supremacists will benefit from the ACLU’s current case, civil libertarians should not view it this way. A more heartening, and constructive, perspective is this: by defending the rights of hate groups today, we inviolably safeguard them for ourselves for the future. If we stave off government attempts to abridge the rights of the most odious groups, we forestall any possible basis by which it can come for our own.


You can read Glenn Greenwald’s full piece for The Intercept here.