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Why the ACLU defends white nationalists’ right to protest — including in Charlottesville

The ACLU has a long history of standing up for everyone’s free speech, even people with bigoted views.

Ku Klux Klan members protest the removal of a Confederate monument in Charlottesville, Virginia. Chet Strange/Getty Images

The white nationalists, neo-Nazis, and Ku Klux Klan members protesting today in Charlottesville, Virginia, have an unusual ally behind them: the American Civil Liberties Union (ACLU).

The ACLU is defending the protesters’ right to demonstrate at Emancipation Park in Charlottesville at the site of a controversial statue of Confederate General Robert E. Lee that is scheduled to be torn down.

The city of Charlottesville had tried to revoke the protest permit of one of the rally organizers, Jason Kessler. But the ACLU, among others, came to his legal defense, arguing in court that the move was trying to unlawfully restrict his free speech.

US District Court Judge Glen Conrad agreed, ruling on Friday “that Kessler has shown that he will likely prove that the decision to revoke his permit was based on the content of his speech.”

“Kessler’s assertion in this regard is supported by the fact that the city solely revoked his permit but left in place the permits issued to counter-protestors,” Conrad added. The ruling allowed the protests to continue.

The ACLU has been spotlighted as a liberal icon since President Donald Trump took office, seeing a spike in donations the weekend after Trump was inaugurated when it vowed to hold his administration accountable in court. So it may seem odd or even upsetting to some supporters that the organization is now standing up for the rights of white nationalists and neo-Nazis.

But this is in fact a very old stance for the ACLU, which has long defended free speech rights as guaranteed to everyone. For the ACLU, that means standing up for some unsavory, offensive, and even bigoted groups — including white nationalists — in defense of free speech.

The ACLU has been defending neo-Nazis in these cases for decades

The first major ACLU case on this topic goes back to the late 1970s, when the ACLU defended a neo-Nazi group’s right to march through the Chicago suburb of Skokie, Illinois. The case, National Socialist Party of America v. Village of Skokie, went all the way up to the Supreme Court, with the court ultimately ruling in favor of the ACLU and neo-Nazi marchers.

In 1977, the leader of the neo-Nazi group declared that his organization intended to march in Skokie. This quickly became controversial because much of Skokie’s population was Jewish and a few thousand of them had survived Nazi concentration camps during the Holocaust. Skokie and lower courts tried to stop the protests, leading the ACLU to get involved in defense of the neo-Nazi group.

The ACLU explained:

The notoriety of the case caused some ACLU members to resign, but to many others the case has come to represent the ACLU’s unwavering commitment to principle. In fact, many of the laws the ACLU cited to defend the group's right to free speech and assembly were the same laws it had invoked during the Civil Rights era, when Southern cities tried to shut down civil rights marches with similar claims about the violence and disruption the protests would cause.

Although the ACLU ultimately prevailed, the neo-Nazi march in Skokie never happened. Instead, the group agreed to hold a rally in downtown Chicago.

Since then, the ACLU has continued defending free speech rights for everyone, from neo-Nazis to the Ku Klux Klan. Most recently, they’ve taken up the case of white supremacist protesters in Charlottesville, as well as a defense of Milo Yiannopolous — who’s targeted Muslims, LGBTQ people, and immigrants with hateful language for years — after the Washington, DC, transit system refused to run ads for his new book.

The ACLU argues free speech rights must be universal

The ACLU’s defense in these cases takes a purist view of the First Amendment right to free speech. The ACLU typically makes it clear that it disagrees with what these groups are saying, but it nonetheless supports their right to say it.

Take the recent Yiannopolous case. In a blog post, James Esseks, director of the LGBT and HIV Project at the ACLU, said that “we vehemently disagree with Mr. Yiannopoulos’ views. We work hard, every day, with the very communities he targets, to fight for equal rights and dignity for all. We recognize that his words cause grievous pain to many individuals, their families, and their loved ones. Speech like his hurts.”

But Esseks argued that standing up for that speech, as hurtful as it may be, is necessary for the work of civil rights:

Without free speech protections, all civil rights advocacy could be shut down by the people in power, precisely because government doesn’t agree with the ideas activists advance. That was true of the civil rights fights of the past, it’s true of the movements facing pitched battles today, and it will be true of the movements of the future that are still striving to be heard.

The argument here is simple: While it’s true today that the authorities in DC — or Skokie or Charlottesville — are working to block racist views, a few decades ago these government bodies may have been working to promote racist views. After all, it was only a few decades ago that different levels of government, with support of much of the public, were working to actively restrain minority rights through, for example, government-sanctioned segregation, restrictions on black Americans’ right to vote, and prohibitions on civil rights protests, particularly in Southern cities.

To create a barrier to this, the argument goes, governments should never be allowed to police free speech based on its content. Everyone gets a voice, and the public can then decide who’s right through reasonable discourse and debate.

Others worry that the ACLU’s stance lets racists legitimize their views

But 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.

Indeed, Chase Strangio, an attorney at the ACLU, spoke out against his organization’s decision to defend Yiannopolous in court. Clarifying that he was only speaking for himself, he wrote:

The ACLU has a long history of representing despicable people in the service of protecting the valuable First Amendment principles and in some cases I support the decisions that have been made and in other cases I do not. Here I do not. Milo's actions may not meet the legal definition of incitement but he acts in a world in which people already feel authorized to demean, attack, and dispose of the bodies and lives of so many.

There’s also an argument that allowing white supremacist and white nationalist groups to take advantage of free speech rights helps them grow stronger and spread their ideology. The concern is that letting these groups publicly speak out legitimizes and mainstreams their views. After all, the coverage of the Charlottesville protests is letting a lot of racist people speak their minds in newspapers and nationally televised programs.

Anthony Oliveira, an activist and a PhD candidate at the University of Toronto who’s studied some of the history of fascist movements, put it this way: “At some point, someone will propose a concentration of power and winnowing of the public voice, and the public sphere will let it articulate the means by which the public sphere can itself be dissolved.”

The pro–free speech argument is that the public, in hearing those racist views, will ultimately come to reject the racism — just as Americans have, over time, come to bigotry in the past. In other words, the marketplace of ideas will ultimately land on the correct, pro-equality view.

Despite some of the controversy, the ACLU doesn’t seem willing to let down anytime soon on its principles. So as strange as it may seem for a group widely loved by liberals, the ACLU helped ensure that this weekend’s racist protests in Charlottesville went on as planned.

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