ACLU, free speech, and discrimination

The New York Times writes about soul-searching at the ACLU in the wake of Charlottesville. Two items of note.

First, Executive Director Anthony Romero discusses the new policy of not representing protesters who plan to march while armed. Romero ties this to early ACLU policies opposing permits for Nazi groups "drilling with arms." He argues that the ACLU has come full circle with respect to Nazi groups. The analogue to Charlottesville is not Skokie, where counter-protesters outnumbered Nazis 70-to-1, the Nazis were unarmed, and the danger was angry spectators attacking them. Charlottesville is more like the 1930s, when fascism was ascendant in Europe and sufficiently popular in the United States to draw large crowds.

Second, the article describes an open letter by around 200 staffers, arguing that the ACLU's "broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance" on hate speech. It is easy to criticize the 200 (as some have) for not understanding what the ACLU is about, given its history, and to tell them to find a different advocacy group. But the signatories are onto something. The modern ACLU has made certain forms of equality part of its core mission. And absolutist protection for free speech does conflict with certain visions of racial justice that would not protect speech advocating for inequality or against equality. It is not the first time this potential conflict has caused the organization problems--in the early '90s, the organization was only lukewarm in its opposition to hate-speech laws and it supported sentence enhancement for racially motivated crimes. And recall the ACLU's 2015 Workplan of major civil-liberties issues, which did not say much about the First Amendment. The signatories have exposed an internal tension of the organization's own making. The usual response to the tension is that speech must be protected for all, lest government turn its censoriousness on equality-promoting groups (consider that the Supreme Court case declaring sentence-enhancement valid involved a prosecution of African-Americans for assaulting white victims). But many racial-justice advocates reject that idea.

The focus on this tension reminds me of the potential tension between "civil liberties" (commonly understood as individual rights as against government, such as free speech) and "civil rights" (commonly understood as equality--both in the face of government discrimination and government efforts to stop private discrimination by legislation). I recall the Harvard Civil Rights-Civil Liberties Law review publishing a symposium on whether its name is an oxymoron. The ACLU may be facing the same problem, as some of its staffers and supporters recognize that they signed up the equality rather than the speech.