David Cole

Why We Must Still De­fend Free Speech

The New York Review of Books - - Contents - *The lead­ing col­lec­tion of es­says ad­vanc­ing this cri­tique is Mari J. Mat­suda, Charles R. Lawrence III, Richard Del­gado, and Kim­berlé Wil­liams Cren­shaw, Words that Wound: Crit­i­cal Race The­ory, As­saultive Speech, and the First Amend­ment (Westview, 1993). Fo

Does the First Amend­ment need a re­write in the era of Don­ald Trump? Should the rise of white su­prem­a­cist and neo-Nazi groups lead us to cut back the pro­tec­tion af­forded to speech that ex­presses ha­tred and ad­vo­cates vi­o­lence, or oth­er­wise un­der­mines equal­ity? If free speech ex­ac­er­bates in­equal­ity, why doesn’t equal­ity, also pro­tected by the Con­sti­tu­tion, take prece­dence?

Af­ter the tragic vi­o­lence at a white su­prem­a­cist rally in Char­lottesville, Vir­ginia, on Au­gust 12, these ques­tions take on re­newed ur­gency. Many have asked in par­tic­u­lar why the ACLU, of which I am na­tional le­gal di­rec­tor, rep­re­sented Ja­son Kessler, the or­ga­nizer of the rally, in chal­leng­ing Char­lottesville’s last-minute ef­fort to re­voke his per­mit. The city pro­posed to move his rally a mile from its orig­i­nally ap­proved site—Eman­ci­pa­tion Park, the lo­ca­tion of the Robert E. Lee mon­u­ment whose re­moval Kessler sought to protest—but of­fered no rea­son why the protest would be any eas­ier to man­age a mile away. As ACLU of­fices across the coun­try have done for thou­sands of marchers for al­most a cen­tury, the ACLU of Vir­ginia gave Kessler le­gal help to pre­serve his per­mit. Should the fa­tal vi­o­lence that fol­lowed prompt re­cal­i­bra­tion of the scope of free speech? The fu­ture of the First Amend­ment may be at is­sue. A 2015 Pew Re­search Cen­ter poll re­ported that 40 per­cent of mil­len­ni­als think the gov­ern­ment should be able to sup­press speech deemed of­fen­sive to mi­nor­ity groups, as com­pared to only 12 per­cent of those born be­tween 1928 and 1945. Young peo­ple to­day voice far less faith in free speech than do their grand­par­ents. And Europe, where racist speech is not pro­tected, has shown that democ­ra­cies can rea­son­ably dif­fer about this is­sue. Peo­ple who op­pose the pro­tec­tion of racist speech make sev­eral ar­gu­ments, all ul­ti­mately rest­ing on a claim that speech rights con­flict with equal­ity, and that equal­ity should pre­vail in the bal­ance.* They con­tend that the “mar­ket­place of ideas” as­sumes a myth­i­cal level play­ing field. If some speak­ers drown out or si­lence oth­ers, the mar­ket­place can­not func­tion in the in­ter­ests of all. They ar­gue that the his­tory of mob and state vi­o­lence tar­get­ing African-Amer­i­cans makes racist speech di­rected at them es­pe­cially in­de­fen­si­ble. Tol­er­at­ing such speech re­in­forces harms that this na­tion has done to African-Amer­i­cans from slav­ery through Jim Crow to to­day’s de facto seg­re­ga­tion, im­plicit bias, and struc­tural dis­crim­i­na­tion. And still oth­ers ar­gue that while it might have made sense to tol­er­ate Nazis march­ing in Skokie in 1978, now, when white su­prem­a­cists have a friend in the pres­i­dent him­self, the power and in­flu­ence they wield jus­tify a dif­fer­ent ap­proach. There is truth in each of these propo­si­tions. The United States is a pro­foundly un­equal so­ci­ety. Our na­tion’s his­tor­i­cal mis­treat­ment of AfricanAmer­i­cans has been shame­ful and the scourge of racism per­sists to this day. Racist speech causes real harm. It can in­spire vi­o­lence and in­tim­i­date peo­ple from freely ex­er­cis­ing their own rights. There is no doubt that Don­ald Trump’s ap­peals to white re­sent­ment and his re­luc­tance to con­demn white su­prem­a­cists af­ter Char­lottesville have em­bold­ened many racists. But at least in the pub­lic arena, none of these un­for­tu­nate truths sup­ports au­tho­riz­ing the state to sup­press speech that ad­vo­cates ideas an­ti­thet­i­cal to egal­i­tar­ian val­ues.

The ar­gu­ment that free speech should not be pro­tected in con­di­tions of in­equal­ity is mis­guided. The right to free speech does not rest on the pre­sump­tion of a level play­ing field. Vir­tu­ally all rights—speech in­cluded—are en­joyed un­equally, and can re­in­force in­equal­ity. The right to prop­erty most ob­vi­ously pro­tects the bil­lion­aire more than it does the poor. Home­own­ers have greater pri­vacy rights than apart­ment dwellers, who in turn have more pri­vacy than the home­less. The fun­da­men­tal right to choose how to ed­u­cate one’s chil­dren means lit­tle to par­ents who can­not af­ford pri­vate schools, and con­trib­utes to the re­silience of seg­re­gated schools and the re­pro­duc­tion of priv­i­lege. Crim­i­nal de­fen­dants’ rights are en­joyed much more ro­bustly by those who can af­ford to hire an ex­pen­sive lawyer than by those de­pen­dent on the mea­ger re­sources that states ded­i­cate to the de­fense of the in­di­gent, thereby con­tribut­ing to the en­demic dis­par­i­ties that plague our crim­i­nal jus­tice sys­tem. Crit­ics ar­gue that the First Amend­ment is dif­fer­ent, be­cause if the weak are si­lenced while the strong speak, or if some have more to spend on speech than oth­ers, the out­comes of the “mar­ket­place of ideas” will be skewed. But the mar­ket­place is a metaphor; it de­scribes not a sci­en­tific method for iden­ti­fy­ing truth but a choice among re­al­is­tic op­tions. It main­tains only that it is bet­ter for the state to re­main neu­tral than to dic­tate what is true and sup­press the rest. One can be jus­ti­fi­ably skep­ti­cal of a de­bate in which Charles Koch or Ge­orge Soros has out­sized ad­van­tages over ev­ery­one else, but still pre­fer it to one in which the Trump— or in­deed Obama—ad­min­is­tra­tion can con­trol what can be said. If free speech is crit­i­cal to democ­racy and to hold­ing our rep­re­sen­ta­tives ac­count­able—and it is—we can­not al­low our rep­re­sen­ta­tives to sup­press views they think are wrong, false, or dis­rup­tive.

Should our na­tion’s shame­ful his­tory of racism change the equa­tion? There is no doubt that African-Amer­i­cans have suf­fered unique mis­treat­ment, and that our coun­try has yet to reckon ad­e­quately with that fact. But to treat speech tar­get­ing African-Amer­i­cans dif­fer­ently from speech tar­get­ing any­one else can­not be squared with the first prin­ci­ple of free speech: the state must be neu­tral with re­gard to speak­ers’ view­points. More­over, what about other groups? While each group’s ex­pe­ri­ences are dis­tinct, many have suf­fered grave dis­crim­i­na­tion, in­clud­ing Na­tive Amer­i­cans, Asian-Amer­i­cans, LGBT peo­ple, women, Jews, Lati­nos, Mus­lims, and im­mi­grants gen­er­ally. Should gov­ern­ment of­fi­cials be free to cen­sor speech that of­fends or tar­gets any of these groups? If not all, which groups get spe­cial pro­tec­tion?

And even if we could some­how an­swer that ques­tion, how would we de­fine what speech to sup­press? Should the gov­ern­ment be able to si­lence all ar­gu­ments against af­fir­ma­tive ac­tion or about ge­netic dif­fer­ences be­tween men and women, or just un­e­d­u­cated racist and sex­ist rants? It is easy to rec­og­nize in­equal­ity; it is vir­tu­ally im­pos­si­ble to ar­tic­u­late a stan­dard for sup­pres­sion of speech that would not af­ford gov­ern­ment of­fi­cials dan­ger­ously broad dis­cre­tion and in­vite dis­crim­i­na­tion against par­tic­u­lar view­points.

But are these chal­lenges per­haps worth tak­ing on be­cause Don­ald Trump is pres­i­dent, and his vic­tory has given new voice to white su­prem­a­cists? That is ex­actly the wrong con­clu­sion. Af­ter all, if we were to au­tho­rize gov­ern­ment of­fi­cials to sup­press speech they find con­trary to Amer­i­can val­ues, it would be Trump—and his al­lies in state and lo­cal gov­ern­ments—who would use that power. Here is the ul­ti­mate con­tra­dic­tion in the ar­gu­ment for state sup­pres­sion of speech in the name of equal­ity: it de­mands pro­tec­tion of dis­ad­van­taged mi­nori­ties’ in­ter­ests, but in a democ­racy, the state acts in the name of the ma­jor­ity, not the mi­nor­ity. Why would dis­ad­van­taged mi­nori­ties trust rep­re­sen­ta­tives of the ma­jor­ity to de­cide whose speech should be cen­sored? At one time, most Amer­i­cans em­braced “sep­a­rate but equal” for the races and sep­a­rate spheres for the sexes as defin­ing equal­ity. It was the free­dom to con­test those views, safe­guarded by the prin­ci­ple of free speech, that al­lowed us to re­ject them.

As Fred­er­ick Dou­glass re­minded us, “Power con­cedes noth­ing with­out a de­mand. It never did and it never will.” Through­out our his­tory, dis­ad­van­taged mi­nor­ity groups have ef­fec­tively used the First Amend­ment to speak, as­so­ciate, and as­sem­ble for the pur­pose of de­mand­ing their rights—and the ACLU has de­fended their right to do so. Where would the move­ments for racial jus­tice, women’s rights, and LGBT equal­ity be with­out a mus­cu­lar First Amend­ment?

In some lim­ited but im­por­tant set­tings, equal­ity norms do trump free speech. At schools and in the workplace, for ex­am­ple, an­tidis­crim­i­na­tion law for­bids ha­rass­ment and hos­tile work­ing con­di­tions based on race or sex, and those rules limit what peo­ple can say there. The courts have rec­og­nized that in sit­u­a­tions in­volv­ing for­mal hier­ar­chy and cap­tive au­di­ences, speech can be lim­ited to en­sure equal ac­cess and treat­ment. But those ex­cep­tions do not ex­tend to the pub­lic sphere, where ideas must be open to full and free con­tes­ta­tion, and those who dis­agree can turn away or talk back.

The re­sponse to Char­lottesville showed the power of talk­ing back. When Don­ald Trump im­plied a kind of moral equiv­a­lence be­tween the white su­prem­a­cist pro­test­ers and their coun­ter­protesters, he quickly found him­self iso­lated. Prom­i­nent Repub­li­cans, mil­i­tary lead­ers, busi­ness ex­ec­u­tives, and con­ser­va­tive, mod­er­ate, and lib­eral com­men­ta­tors alike con­demned the ide­ol­ogy of white supremacy, Trump him­self, or both.

When white su­prem­a­cists called a rally the fol­low­ing week in Bos­ton, they mus­tered only a hand­ful of

sup­port­ers. They were vastly out­num­bered by tens of thou­sands of coun­ter­protesters who peace­fully marched through the streets to con­demn white supremacy, racism, and hate. Bos­ton proved yet again that the most pow­er­ful re­sponse to speech that we hate is not sup­pres­sion but more speech. Even Stephen Ban­non, un­til re­cently Trump’s chief strate­gist and now once again ex­ec­u­tive chair­man of Bre­it­bart News, de­nounced white su­prem­a­cists as “losers” and “a col­lec­tion of clowns.” Free speech, in short, is ex­pos­ing white su­prem­a­cists’ ideas to the condemnation they de­serve. Moral condemnation, not le­gal sup­pres­sion, is the ap­pro­pri­ate re­sponse to these de­spi­ca­ble ideas.

Some white su­prem­a­cists ad­vo­cate not only hate but vi­o­lence. They want to purge the coun­try of non­whites, nonChris­tians, and other “un­de­sir­ables,” and re­turn us to a racial caste so­ci­ety— and the only way to do that is through force. The First Amend­ment pro­tects speech but not vi­o­lence. So what pos­si­ble value is there in pro­tect­ing speech ad­vo­cat­ing vi­o­lence? Our his­tory il­lus­trates that un­less very nar­rowly con­strained, the power to re­strict the ad­vo­cacy of vi­o­lence is an in­vi­ta­tion to pun­ish po­lit­i­cal dis­sent. A. Mitchell Palmer, J. Edgar Hoover, and Joseph McCarthy all used the ad­vo­cacy of vi­o­lence as a jus­ti­fi­ca­tion to pun­ish peo­ple who as­so­ci­ated with Com­mu­nists, so­cial­ists, or civil rights groups.

Those lessons led the Supreme Court, in a 1969 ACLU case in­volv­ing a Ku Klux Klan rally, to rule that speech ad­vo­cat­ing vi­o­lence or other crim­i­nal con­duct is pro­tected un­less it is in­tended and likely to pro­duce im­mi­nent law­less ac­tion, a highly speech-pro­tec­tive rule. In ad­di­tion to in­cite­ment, thus nar­rowly de­fined, a “true threat” against spe­cific in­di­vid­u­als is also not pro­tected. But aside from these in­stances in which speech and vi­o­lence are in­ex­tri­ca­bly in­ter­twined, speech ad­vo­cat­ing vi­o­lence gets full First Amend­ment pro­tec­tion. In Char­lottesville, the ACLU’s client swore un­der oath that he in­tended only a peace­ful protest. The city cited gen­eral con­cerns about man­ag­ing the crowd in seek­ing to move the marchers a mile from the orig­i­nally ap­proved site. But as the district court found, the city of­fered no rea­son why there wouldn’t be just as many pro­test­ers and coun­ter­protesters at the al­ter­na­tive site. Vi­o­lence did break out in Char­lottesville, but that ap­pears to have been at least in part be­cause the po­lice ut­terly failed to keep the pro­test­ers sep­a­rated or to break up the fights.

What about speech and weapons? The ACLU’s ex­ec­u­tive di­rec­tor, An­thony Romero, ex­plained that, in light of Char­lottesville and the risk of vi­o­lence at fu­ture protests, the ACLU will not rep­re­sent marchers who seek to bran­dish weapons while protest­ing. (This is not a new po­si­tion. In a pam­phlet signed by Roger Bald­win, Arthur Garfield Hays, Mor­ris Ernst, and oth­ers, the ACLU took a sim­i­lar stance in 1934, ex­plain­ing that we de­fended the Nazis’ right to speak, but not to march while armed.) This is a con­tent-neu­tral pol­icy; it ap­plies to all armed marchers, re­gard­less of their views. And it is driven by the twin con­cerns of avoid­ing vi­o­lence and the im­pair­ment of many rights, speech in­cluded, that vi­o­lence so of­ten oc­ca­sions. Free speech al­lows us to re­solve our dif­fer­ences through pub­lic rea­son; vi­o­lence is its an­tithe­sis. The First Amend­ment pro­tects the ex­change of views, not the ex­change of bul­lets. Just as it is rea­son­able to ex­clude weapons from court­houses, air­ports, schools, and Fourth of July cel­e­bra­tions on the Na­tional Mall, so it is rea­son­able to ex­clude them from pub­lic protests.

Some

ACLU staff and sup­port­ers have made a more lim­ited ar­gu­ment. They don’t di­rectly ques­tion whether the First Amend­ment should pro­tect white su­prem­a­cist groups. In­stead, they ask why the ACLU as an or­ga­ni­za­tion rep­re­sents them. In most cases, the pro­test­ers should be able to find lawyers else­where. Many ACLU staff mem­bers un­der­stand­ably find rep­re­sent­ing these groups re­pug­nant; their views are di­rectly con­trary to many of the val­ues we fight for. And rep­re­sent­ing rightwing ex­trem­ists makes it more dif­fi­cult for the ACLU to work with its al­lies on a wide range of is­sues, from racial jus­tice to LGBT equal­ity to im­mi­grants’ rights. As a mat­ter of re­sources, the ACLU spends far more on claims to equal­ity by marginal­ized groups than it does on First Amend­ment claims. If the First Amend­ment work is un­der­min­ing our other ef­forts, why do it?

These are real costs, and de­serve con­sid­er­a­tion as ACLU lawyers make caseby-case de­ci­sions about how to de­ploy our re­sources. But they can­not be a bar to do­ing such work. The truth is that both in­ter­nally and ex­ter­nally, it would be much eas­ier for the ACLU to rep­re­sent only those with whom we agree. But the power of our First Amend­ment ad­vo­cacy turns on our com­mit­ment to a prin­ci­ple of view­point neu­tral­ity that re­quires pro­tec­tion for pro­po­nents and op­po­nents of our own best view of racial jus­tice. If we de­fended speech only when we agreed with it, on what ground would we ask oth­ers to tol­er­ate speech they op­pose?

In a fun­da­men­tal sense, the First Amend­ment safe­guards not only the Amer­i­can ex­per­i­ment in demo­cratic plu­ral­ism, but ev­ery­thing the ACLU does. In the pur­suit of lib­erty and jus­tice, we as­so­ciate, ad­vo­cate, and pe­ti­tion the gov­ern­ment. We pro­tect the First Amend­ment not only be­cause it is the lifeblood of democ­racy and an in­dis­pens­able el­e­ment of free­dom, but be­cause it is the guar­an­tor of civil so­ci­ety it­self. It pro­tects the press, the acad­emy, re­li­gion, po­lit­i­cal par­ties, and non­profit as­so­ci­a­tions like ours. In the era of Don­ald Trump, the im­por­tance of pre­serv­ing these av­enues for ad­vanc­ing jus­tice and pre­serv­ing democ­racy should be more ev­i­dent than ever. —Au­gust 24, 2017

White na­tion­al­ists march­ing on the Univer­sity of Vir­ginia cam­pus, Char­lottesville, Au­gust 2017

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