Defending free speech when laws do not apply equally to everyone

For those of us who worship at the altar of civil liberties and human rights, the American Civil Liberties Union’s (ACLU) decision to defend the free speech rights of white supremacists in Charlottesville, Va., has forced us to question our faith. While the ACLU has courageously defended the rights of marginalized voices, it simultaneously employs the US Constitution’s First Amendment provisions to protect free speech that preserves white supremacist violence.

The ACLU was established nearly 100 years ago to protect the constitutional rights of individuals and groups against repressive state power. As an ardent defender of free speech for everyone, the ACLU in 1978 defended a Nazi group that wanted to march through a neighborhood in Chicago where many Holocaust survivors lived. The organization has often used the “slippery slope” rationale, arguing that if one group is silenced then it is only a matter of time before the government could silence any group that opposes it. It was therefore unsurprising that the ACLU supported an application by Jason Kessler on behalf of the Unite the Right to hold a demonstration in Emancipation Park in Charlottesville on August 12, 2017.

Flickr/Rodney Dunning/CC BY-NC-ND 2.0 (Some Rights Reserved).

Protesters in Emancipation Park in Charlottesville on August 12, 2017. 

The demonstration centered on the removal of a statue of Robert E. Lee, a general in the confederate army that supported slavery. When Charlottesville state officials subsequently withdrew Kessler’s permit to demonstrate, citing safety concerns, the ACLU successfully brought a court application to defend the rights of the white supremacist group using the free speech provisions in the US Constitution’s First Amendment. Following the court application to allow the rally to proceed, the ACLU stated that, “We are grateful that the court recognized that the First Amendment applies equally to everyone regardless of their views.”

While the ACLU’s condemnation of white supremacy is somewhat reassuring, and its position on free speech may be legally sound since hate speech is largely protected by the First Amendment, there is something deeply troubling about their conceptualization of equality. This unsettling feeling may have to do with our intuitive sense that laws do not actually apply equally to everyone. We know that laws are subject to interpretation and that a more expensive lawyer (or team of lawyers) may influence that interpretation. And we also know that not everyone is equal; black bodies are treated differently compared to white ones.

But to acknowledge that civil rights and the legal system that gives rise to these rights do not apply equally to everyone means that the ACLU would need to confront its liberal, Euro-American foundations. Framed within rights discourses that euphemize white colonial violence, the ACLU’s protection of free speech in the Unite the Right case tends to focus narrowly on the present moment. At the same time, the ACLU does incredibly valuable work that challenges state power, protects our right to privacy, and prevents torture. These seemingly contradictory positions within the ACLU has led to internal conflict within the organization leading to a subsequent resignation from the ACLU Virginia Board and public criticism from one of its volunteers.

Rights discourses direct our attention to the imminent present and to a just, utopian future.

However, these contradictions are more reflective of the ideological foundations of rights discourses than the ACLU’s mission. The violent origins of civil rights, which follow the end of deadly wars and destruction, may offer further insight into the inherent contradictions embedded in rights frameworks. These frameworks desperately want to erase the history of white violence that manifested as colonialism and slavery. Instead, rights discourses direct our attention to the imminent present and to a just, utopian future. The freedom of speech provisions in the First Amendment epitomize a value system centered on white liberal individualism and blind equality that cannot comprehend what it means to be a black body in the US today.

In the court decision granting permission to Jason Kessler to proceed with the Unite the Right Rally, the District Judge held that, “The disparity in treatment between the two groups with opposing views suggests that the defendants’ decision to revoke Kessler's permit was based on the content of his speech rather than other neutral factors that would be equally applicable to Kessler and those protesting against him.”

It is this blind neutrality that emanates from civil rights discourse which allows white supremacists and social justice advocates to be innocuously referred to as “two groups with opposing views”. The court decision fails to recognize that rights discourses, which are meant to be emancipatory, can easily be appropriated by organizations such as Unite the Right. The judge’s focus on the “disparity of treatment” between the two protesting groups also suggests a militant approach to equality that treats the privileged white supremacists in the same way as their targets, who are often powerless and oppressed. Furthermore, while the US Supreme Court limits free speech in instances where “fighting words” incite imminent physical violence, it fails to recognize the systemic violence inherent in very idea of white supremacy. Symbols such as swastikas and confederate statues are acts of violence. Referring to black bodies as “savages” and “niggers” is an act of violence. White supremacists marching through the streets is an act of violence.

White violence is not just physical violence; any act or symbol that perpetuates white dominance over others is violence. It is therefore imperative that we not only critically evaluate the work of the ACLU, but all white liberal institutions, rights frameworks, and legal systems that fail to confront white violence in every form. Even though organizations like the ACLU are often seen as allies in black struggles, its national leadership structure, comprised primarily of white liberals, must begin to reevaluate its position on defending the free speech rights of white supremacists. While it is easy to identify and rebuke the white supremacist, other types of white violence are much more hidden and, arguably, far more pervasive. If the ACLU and other white liberal allies truly want to change the system and end oppression, they must look at themselves first.