August 17, 2017 Last Updated 9:32 am

ACLU of California splits from national group regarding speech that promotes violence

‘The First Amendment should never be used as a shield or sword to justify violence’ wrote the California organization in a statement at odds with the position of the national group

The issue of free speech can be a complicated one when it comes to speech that promotes violence. This has no better demonstration of that fact than that the ACLU is itself divided on it.

The First Amendment is often misinterpreted to support unlimited free speech, but the courts have disagreed on several occasions.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Libel, slander, defamation, advocacy of illegal actions… these are just some of the categories of speech that the courts have found are not protected by the First Amendment, generally because they conflict with other constitutional protections.

Historically, the ACLU has advocated for the right to free speech even when that speech involved hate speech. Probably its most famous case was in 1978, when the ACLU defended the rights of a neo-Nazi group that wanted to march through the Chicago suburb of Skokie. The ACLU won that case, but lost members because of it (and the neo-Nazis ended up not marching through Skokie, instead rallying elsewhere).

Now, the issue is the right of neo-Nazis to hold rallies to protest the removal of Confederate monuments. So far at least, the national ACLU has defended the right of the Nazis to rally:

“The First Amendment is a critical part of our democracy, and it protects vile, hateful, and ignorant speech. For this reason, the ACLU of Virginia defended the white supremacists’ right to march. But we will not be silent in the face of white supremacy. Those who do stand silent enable it. That includes our president.”

But, of course, the issue is complicated by the fact that the neo-Nazis and white supremacists are advocating violence against minorities and others. They are coming to these rallies with guns, shields and clubs. Is this form of speech to be protected?

The ACLU of California today broke with the national organization, issuing a statement declaring that White Supremacist Violence is Not Free Speech.

“Our country’s greatest strengths are the diversity of its people and the principles of equal dignity and inclusion that unite us all. There are troubling events planned in our state in the coming weeks. This is an incredibly painful and difficult time for millions of Californians. For those who are wondering where we stand – the ACLU of California fully supports the freedom of speech and expression, as well as the freedom to peacefully assemble. We review each request for help on a case-by-case basis, but take the clear position that the First Amendment does not protect people who incite or engage in violence. 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. The First Amendment should never be used as a shield or sword to justify violence.”

The national organization has yet to respond, and it is highly unlikely that this split is one that will actually split the organization, though it is also unlikely that the national organization will alter its own position on the issue.

“We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open,” wrote Anthony D. Romero, ACLU Executive Director this week.

“There is another practical reason that we have defended the free speech rights of Nazis and the Ku Klux Klan. Today, as much as ever, the forces of white supremacy and the forces for equality and justice are locked in fierce battles, not only in Washington but in state houses and city councils around the country. Some government decision-makers are deeply opposed to the speech we support. We simply never want government to be in a position to favor or disfavor particular viewpoints.”

Photo: Downtown Charlottesville by Bob Mical
Home Page Photo: Rally in Tarrytown, NY today for Charlottesville, VA by Andrew Dallos
Both used under Creative Commons Attribution 2.0 Generic

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