The Misguided Attacks on ACLU for Defending Neo-Nazis’ Free Speech Rights in Charlottesville

Each time horrific political violence is perpetrated that is deemed to be terrorism, a search is immediately conducted for culprits to blame other than those who actually perpetrated the violence or endorsed the group responsible for it. It’s usually only a matter of hours before the attack is exploited to declare one’s own political views as vindicated, and to depict one’s political adversaries as responsible for, if not complicit in, the violence. Often accompanying this search for villains is a list of core civil liberties that we’re told ought to be curtailed in the name of preventing similar acts of violence in the future.

All of this typically happens before much of anything is known about the killer, his actual inspirations, his mental health, or his associations. In the aftermath of the widespread horror such violence naturally produces, the easiest target for these guilty-by-association tactics are those who have advocated for the legal rights of the group that the individual attacker is a member of and/or those who have defended the legal right to express opinions in the name of which the attack was carried out.

These tactics are most familiar when a Muslim perpetrates violence within a Western city, aimed at Westerners. Before anything is known about the attacker other than his religious identity, the violence is instantly declared to be terrorism. Then the search is quickly launched to find anyone who can be said to be responsible for the violence by virtue of having “encouraged” or “enabled” Islamic extremism, often by doing nothing more than having defended the legal rights of the group being blamed for the attack.

At the top of the blame list, one always finds a wide range of imams who preach Islam — even those who have never in their lives advocated violence of any kind — as well as activists who defend Muslims from bigotry and persecution. But also prominently featured in this vilification game are legal groups, such as the Council on American-Islamic Relations and the American Civil Liberties Union, that defend the free speech rights and other civil liberties of Muslims to be free of state persecution and suppression. Recently, even social media platforms that allow Muslims to express themselves without state censorship are said to be “complicit.”

Linking CAIR to terrorist attacks because of their civil liberties work is commonplace among the Islamophobic right. The ACLU — which has defended accused Al Qaeda terrorists, tried to prevent the Obama administration from killing Anwar al-Awlaki without due process, and opposed the criminal prosecution of Muslim extremists on free speech grounds — is constantly vilified as terrorist enablers by the anti-Muslim right as a result of that civil liberties advocacy. And now, each time there’s a new attack, the UK government routinely accuses Facebook and other social media companies of “aiding and abetting” the Islamic State and Al Qaeda because of its refusal to obey UK government orders about which views should be censored from the site.

That anyone who defends the legal rights of terrorists or gives them a platform is culpable for the violence they commit has been standard neoconservative and far right cant for decades. One of the most odious examples came from 2009 when a new group started by Bill Kristol and Lynne Cheney — calling itself “Keep America Safe” — produced ads strongly implying that Obama DOJ lawyers who defended accused Al Qaeda suspects were supporters of jihadist violence against the U.S.:

Demonizing lawyers and civil liberties advocates by depicting them as “complicit” in the heinous acts of their clients is a long-standing scam that is not confined to the U.S. The Belgian lawyer who represented one of the Muslim attackers in Paris, Sven Mary, said “he had suffered physical and verbal attacks and his daughters had even needed a police escort to school.”

Needless to say, none of these legal organizations or individual lawyers condone violence. They all vehemently oppose the ideology and worldview in the name of which this violence is committed. Yet they are all blamed for the violence and accused of complicity in it because they defend the free speech rights and civil liberties of people who express views in the name of which violence is committed.

This same warped mentality — blaming civil liberties advocates for the bad acts of their clients — was on full display yesterday in the wake of the heinous car attack in Charlottesville, Virginia, by a white nationalist on a group of anti-fascist protesters. That attack killed one woman, a 32-year-old paralegal, Heather Heyer, and injured multiple anti-racist protesters, many of whom were members of groups, such as Democratic Socialists of America and Industrial Workers of the World, now regularly castigated as the “alt-left” (as though they bear any resemblance to the “alt-right” groups they bravely protest).

The accused attacker, 20-year-old James Alex Fields Jr., is in custody. He seems to have been photographed participating before the attack in the white nationalist march. And Field’s local Ohio paper cited his mother as saying that “her son texted her Friday to say he had dropped his cat off at her Monclova Township apartment so he could go to an ‘alt-right’ rally in Virginia.”

Some of the attempts to assign culpability for this violence on others besides the perpetrator were reasonable and rational. In particular, a legitimate causal connection can be drawn between this violence and the two-year flirtation by Donald Trump and several of his closest advisers with the rhetoric and even the activism of white nationalism, as even many of the white supremacists themselves recognized. As I argued last August, it seemed only a matter of time before Trump’s worldview sparked violence of this kind:

The rhetoric that [Trump has] been embracing over the past 18 months is extraordinarily frightening, because, even if he loses, he is emboldening extremist nationalism, racism, all kinds of bigotry. He’s giving license for its expression. He is serving as a galvanizing force for these very dangerous elements, not just in the American political culture, but in Europe and elsewhere throughout the right.

But other blame attempts were not just baseless but themselves deeply pernicious, a mirror image of the ugly Kristol/Cheney campaign against the Obama Justice Department lawyers who had defended the due process rights of Al Qaeda members.

Last week, the ACLU sparked controversy when it announced that it was defending the free speech rights of “alt-right” activist Milo Yiannopoulos after the Washington Metropolitan Area Transit Authority refused to allow ads for his book to be displayed on public transit. Lost in the debate was that other groups the ACLU was defending along with Yiannopoulos were also censored under the same rule: Carafem, which helps women access birth control and medical abortion; the animal rights group PETA; and the ACLU itself.

For representing Yiannopoulos, the civil liberties group was widely accused of defending and enabling fascism. But the ACLU wasn’t “defending Yiannopoulos” as much as it was opposing a rule that allows state censorship of any controversial political messages the state wishes to suppress: a rule that is often applied to groups which are supported by many who attacked the ACLU here.

The same formula was applied yesterday when people learned that the ACLU of Virginia had represented the white supremacist protesters in Charlottesville after city officials tried to ban the group from gathering in Emancipation Park where a statue of Robert E. Lee was to be removed (city officials tried to move the march to an isolated location one mile away). One board member of the ACLU of Virginia, Waldo Jaquith, waited until the violence erupted to announce on Twitter that he was resigning in protest of the ACLU’s representation of the protesters — as though he was unaware when he joined the board that the ACLU has been representing the free speech rights of neo-Nazis and other white supremacist groups (along with communists, Muslims, war protesters, and the full spectrum of marginalized minorities and leftists) for many decades.

Many attacked the ACLU’s decision to represent Yiannopoulos and these Charlottesville protests as though they were allies of the marchers, while others literally accused them of enabling fascism or even blamed them for the violence:

The antifascists targeted in the white supremacist terror attack today will forever remember the ACLU's positionhttps://t.co/6Mj1UMaM7T

— Ben Norton (@BenjaminNorton) August 13, 2017

Defund the ACLU. Please stop donating to them. https://t.co/bx90vKEz3Z

— Arnesa Buljušmi?-Kustura (@Rrrrnessa) August 12, 2017

FUCK THE ACLU
ACLU CELEBRATES CAUSING DEATH TO ANTI-FASCISTS AT THE HANDS OF NAZI AND KKK
"FREE SPEECH" IS FASCISMhttps://t.co/riZrCk8w1D

— shanley (@shanley) August 12, 2017

https://twitter.com/ztsamudzi/status/896522800151707648

https://twitter.com/robynkanner/status/895400566091808768

you just confessed to being white supremacists. You don't get to defend them and claim separation. You. Are. Their. Allies.

— Cecilia she/they (@ChaoticRambler) August 13, 2017

(Ironically, just last month, the ACLU was the target of a similar de-funding campaign by the anti-Islam, pro-Israel right for the group’s defense of Muslim-American activist Linda Sarsour; such is life as a principled civil liberties proponent).

The flaws and dangers in this anti-free speech mindset are manifest, but nonetheless always worth highlighting, especially when horrific violence causes people to want to abridge civil liberties in the name of stopping it. In sum, purporting to oppose fascism by allowing the state to ban views it opposes is like purporting to oppose human rights abuses by mandating the torture of all prisoners.

One of the defining attributes of fascism is forcible suppression of views (“For Ur-Fascism, disagreement is treason,” wrote Umberto Eco); recall that one of Trump’s first proposals after winning the 2016 election was to criminalize flag desecration. You can’t fight that ideology by employing and championing one of its defining traits: viewpoint-based state censorship.

Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

— Donald J. Trump (@realDonaldTrump) November 29, 2016

Even if this position could be morally justified, those who favor free speech suppression, or who oppose the ACLU’s universal defense of speech rights, will create results that are the exact opposite of those they claim to want. It’s an indescribably misguided strategy that will inevitably victimize themselves and their own views.

Let’s begin with one critical fact: the ACLU has always defended, and still does defend, the free speech rights of the most marginalized left-wing activists, from communists and atheists, to hardcore war opponents and pacifists, and has taken up numerous free speech causes supported by many on the left and loathed by the right, including defending the rights of Muslim extremists and even NAMBLA. That’s true of any consistent civil liberties advocate: we defend the rights of those with views we hate in order to strengthen our defense of the rights of those who are most marginalized and vulnerable in society.

The ACLU is primarily a legal organization. That means they defend people’s rights in court, under principles of law. One of the governing tools of courts is precedent: the application of prior rulings to current cases. If the ACLU allows the state to suppress the free speech rights of white nationalists or neo-Nazi groups — by refusing to defend such groups when the state tries to censor them or by allowing them to have inadequate representation — then the ACLU’s ability to defend the free speech rights of groups and people that you like will be severely compromised.

It’s easy to be dismissive of this serious aspect of the debate if you’re some white American or non-Muslim American whose free speech is very unlikely to be depicted as “material support for terrorism” or otherwise criminalized. But if you’re someone who cares about the free speech attacks on radical leftists, Muslims, and other marginalized groups, and tries to defend those rights in court, then you’re going to be genuinely afraid of allowing anti-free speech precedents to become entrenched that will then be used against you when it’s time to defend free speech rights. The ACLU is not defending white supremacist groups but instead is defending a principle — one that it must defend if it is going to be successful in defending free speech rights for people you support.

Beyond that, the contradiction embedded in this anti-free speech advocacy is so glaring. For many of those attacking the ACLU here, it is a staple of their worldview that the U.S. is a racist and fascist country and that those who control the government are right-wing authoritarians. There is substantial validity to that view.

Why, then, would people who believe that simultaneously want to vest in these same fascism-supporting authorities the power to ban and outlaw ideas they dislike? Why would you possibly think that the List of Prohibited Ideas will end up including the views you hate rather than the views you support? 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?

As I wrote in my comprehensive 2013 defense of free speech in The Guardian, this overflowing naïveté is what I’ve always found most confounding about the left-wing case against universal free speech: this belief that state authorities will exercise this power of censorship magnanimously and responsibly: “At any given point, any speech that subverts state authority can be deemed — legitimately so — to be hateful and even tending to incite violence.”

Then there’s the back-up attack on the ACLU: OK, fine, I’m for free speech, even of Milo and Nazis, but why don’t they spend their resources defending free speech rights for good people rather than white supremacists? Nobody is forcing them to take these cases. As a recent Vox article on the ACLU debate put it: “Some question whether the organization should be using its resources to defend such awful groups of people. It’s one thing in theory to support universal free speech rights, but it’s another to actually spend time and money defending neo-Nazis.” This was one of the arguments made by ACLU lawyer Chase Strangio in objecting to the group’s decision to defend Yiannopoulous.

Notably, this was the same argument made by right-wing neocon activists to attack the Obama DOJ lawyers for defending Al Qaeda members: Yes, fine, everyone deserves a defense, but why did they choose to represent Al Qaeda? As National Review’s Andrew McCarthy put it in attacking those lawyers: “The salient issue in the controversy over Justice Department attorneys who formerly represented our terrorist enemies detained at Guantánamo Bay is this: They were volunteers.”

Leave aside the fact that the ACLU does expend vast resources to defend the rights of immigrants, minorities against abusive policing and a racist justice system, and Muslims. Beyond all that, the reason it’s vital to expend resources to defend free speech rights of awful people, even white nationalists, is because that’s where free speech battles are always and by definition fought.

It’s always those whose views are deemed most odious by the mainstream that are the initial targets of censorship efforts; it’s very rare that the state tries to censor the views held by the mainstream. If you allow those initial censorship efforts to succeed because of your distaste for those being targeted, then you lose the ability to defend the rights of those you like because the censorship principle has been enshrined. That’s why the ACLU, for instance, defended the free speech rights of the revolting Fred Phelps, and one of its leading LGBT lawyers justified that position this way:

We do it because we believe in the principle, and because we realize that once you chip away at one person’s rights, everyone else’s are at risk. … Free speech doesn’t belong only to those we agree with, and the First Amendment doesn’t only protect speech that is tasteful and inoffensive. In fact, it is in the hard cases that our commitment to the First Amendment is most tested and most important. As one federal judge has put it, tolerating hateful speech is “the best protection we have against any Nazi-type regime in this country.”

Then, finally, there’s the argument about efficacy. How can anyone believe that neo-Nazism or white supremacy will disappear in the U.S., or even be weakened, if it’s forcibly suppressed by the state? Is it not glaringly apparent that the exact opposite will happen: by turning them into free speech martyrs, you will do nothing but strengthen them and make them more sympathetic? Literally nothing has helped Yiannopoulos become a national cult figure more than the well-intentioned (but failed) efforts to deny him a platform. Nothing could be better designed to aid their cause than converting a fringe, tiny group of overt neo-Nazis into some sort of poster child for free speech rights.

The need to fight neo-Nazism and white supremacy wherever it appears is compelling. The least effective tactic is to try to empower the state to suppress the expression of their views. That will backfire in all sorts of ways: strengthening that movement and ensuring that those who advocate state censorship today are its defenseless targets tomorrow. And whatever else is true, the impulse to react to terrorist attacks by demanding the curtailment of core civil liberties is always irrational, dangerous, and self-destructive, no matter how tempting that impulse might be.

Clarification: One sentence was lightly edited to clarify that it was the ACLU’s defense of the free speech rights of Muslim extremists and NAMBLA that found support on the left — not that those groups are themselves part of the left.

Top photo: Demonstrators hold shields and flags during the “Unite the Right” free speech rally at Emancipation Park in Charlottesville, Va., on August 12, 2017.