The ACLU's free speech stance should be about social justice, not 'timeless' principles

White nationalist demonstrators use shields as they guard the entrance to Lee Park in Charlottesville, Va. on Aug 12. The ACLU is reeling from criticism for defending white supremacists' right to march in Charlottesvile.

By Laura Weinrib

Aug. 30, 2017 4 AM PT

The American Civil Liberties Union has been much scrutinized since its decision to represent white supremacists in their quest to march in Charlottesville, Va. Board members have resigned and allies have declared that the ACLU, at long last, has gone too far. In the aftermath, the ACLU of California issued an equivocal statement, endorsed by the national ACLU, clarifying that the 1st Amendment “does not protect people who incite or engage in violence” but reiterating the organization’s complete support for “freedom of speech and expression.”

Commentators have rightly observed that the ACLU has defended far-right speech since its founding, despite fierce criticism. But there is a common and mistaken premise in this analysis. It assumes that the organization has always believed, as it does today, that “freedom of expression is an end in itself.” In reality, the early ACLU viewed free speech as a tool of social justice, suited to particular purposes under particular conditions.

To correct the prevailing misconception, we need to look back to the 1930s, when economic desperation was fueling a battle between reactionary impulses and radical aspirations, and Nazis first appeared on American streets. Even as American fascists appealed to anti-Semitism and white privilege, the ACLU fought for their right to hold rallies. Although it did not oppose regulations against armed marches, it insisted that “the right to parade,” even “in brown shirts with swastikas,” should “never be denied.”

Why did the ACLU defend Nazis when they were terrorizing Germany and their virulence was painfully apparent? As the organization acknowledged in its pamphlet on Nazi speech, it was a “practical tactic” as much as an “abstract principle.”

The balances have shifted dramatically since the 1930s. In recent years, nearly half of 1st Amendment victories have gone to corporations and trade groups.

A core contingent of the ACLU leadership hoped that an expansive interpretation of the 1st Amendment could pave the way to fundamental economic change, above all through the movement to organize America’s workers. The organization’s founders described themselves as “partisans of labor.” And they understood that the courts, which historically were hostile to unions, were disinclined to distinguish between the intimidation posed by Nazis marching in uniform and the intimidation posed by workers on a picket line.

Defending radical tactics exposed the ACLU to charges that it was just as subversive as the agitators it represented. Defending Nazi speech furnished a compelling response. When one government lawyer sought to deflect a labor picketing challenge by accusing ACLU general counsel Arthur Garfield Hays of fronting for Communists, the judge pointed out that Hays, who was Jewish, had previously represented a Nazi group. “Certainly you cannot accuse Mr. Hays of being a Nazi,” he reflected.

To convince the courts that the 1st Amendment encompassed all speech short of inciting violence, the ACLU articulated the now-conventional justifications for free speech. It argued that the best way to fend off totalitarianism was to preserve American freedoms. It emphasized the difficulties of line-drawing and the ease with which restrictive laws, once passed, were used to silence “progressive groups as well.” It reasoned that “propaganda arousing religious or race hatred” was best defused through “counter-propaganda” and protest.

Yet the ACLU’s defense of Nazi speech in the 1930s was never untethered from the exigencies of its historical moment. In the words of co-founder Roger Baldwin, it was “the only sound position to get the results you want—at least in this country and at this particular period.” The ACLU weighed the transformative power of workers’ strikes and protests against the possibility that America would succumb to fascism. The upsurge of progressivism that swept President Franklin D. Roosevelt into office made the former a reasonable bet.

For a time, it seemed the gamble might pay off. The Supreme Court held that labor picketing was within the ambit of the 1st Amendment. As union strength grew, however, it permitted the government to curtail picketing and boycotts after all.

Almost a century later, is a dogged commitment to free speech still the best strategy for an organization that is avowedly pursuing the “advancement of civil rights and social justice”? That question once again requires evaluation of conditions on the ground.

The balances have shifted dramatically since the 1930s. In recent years, nearly half of 1st Amendment victories have gone to corporations and trade groups challenging government regulation. Free speech has served to secure the political influence of wealthy donors. Labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses. Long-settled principles of American democracy are newly vulnerable, and hate has found fertile terrain.

Today’s 1st Amendment has plenty of eager defenders. As the ACLU reassesses its agenda, it should consider a warning issued by a disaffected board member when, on the brink of World War II, the organization assumed its current neutral posture. “Speech and the other civil liberties are meaningful only to men who dare to use them,” he insisted—and “before ‘daring’ come bread and water, come roots in the community, comes respite from fear.”

Laura Weinrib is professor of law at the University of Chicago Law School. She is author of “The Taming of Free Speech: America’s Civil Liberties Compromise.”

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