I have a hazy childhood memory of being home sick from school and watching the 1981 movie “Skokie”. It tells the story of a planned neo-Nazi march through Skokie, in the Illinois, a suburban neighborhood full of Holocaust survivors, and the lawyer for the Jewish American Civil Liberties Union, based on David Goldberger, who defended the Nazis on the grounds of free speech.
Little of the film has stayed with me except for the awe at the ACLU’s position. The odiousness of those he defended proved the purity of his dedication to the First Amendment. I have revered the organization ever since.
It would be difficult to make a similar film about Charlottesville, Va., Where the ACLU helped an alternative right-wing leader retain a permit to rally downtown in August 2017. In retrospect, part of the reason why the The Skokie case seemed clear, at least from my childhood, was that the Nazis posed little physical danger to anyone. They were only about twenty, and they were quite marginal; no prominent politician called them very good people. The stakes in the Skokie debate were symbolic. In Charlottesville, where a white nationalist riot led to the murder of a woman, it was life or death.
Thinking of the contrast, I can understand why the free speech libertarianism that I grew up with has fallen out of fashion. As the New York Times’ Michael Powell reported in a fascinating article last weekend, there is a wedge at the ACLU between an old guard committed to an expansive version of free speech and staff members. who argue that a “rigid” view of the First Amendment undermines the fight for racial justice. Powell quoted Goldberger as lamenting, “The Liberals are leaving the First Amendment behind. “
Goldberger’s complaint is exaggerated. As ACLU National Legal Director David Cole wrote, the organization continues to champion the rhetoric of those progressives look down upon, including, in recent years, the National Rifle Association and Americans for Prosperity. Still, it’s pretty clear that there is a generational divide over free speech, both in the ACLU and in liberalism at large.
I wonder, however, if that division might soon fade away, as events around the world conspire to remind the American left how dependent it is on a robust First Amendment. Civil liberties advocates have always argued that while the privileged enjoy more free speech protections in practice, the erosion of free speech guarantees will always fall harder on the most marginalized. It is now happening across the country.
In a number of states, Republicans have responded to last year’s racial justice uprising by cracking down on protesters. As The Times reported in April, during the legislative sessions of 2021, lawmakers in 34 states introduced 81 anti-protest bills. An Indiana bill would bar those convicted of illegal assembly from working in the state. A Minnesota proposal would bar those convicted of illegally protesting from obtaining student loans, unemployment benefits or housing assistance. Florida has passed a law protecting drivers from liability if they crash their cars against people protesting on the streets.
Meanwhile, right-wing moral panic over critical race theory has led to a series of statewide bills banning schools – including colleges and universities – from teaching. what are often referred to as “concepts of division,” including the idea that the United States is inherently racist or sexist. Even where such laws were not passed, the campaign had a chilling effect; the Kansas Board of Regents recently asked state universities for a list of courses that include Critical Race Theory.
Some on the left, no doubt, will not see this multi-pronged assault as a reason to defend neutral principles of free speech, as they do not expect such principles to be applied in a neutral manner. Defending the speech of your enemies is obviously no guarantee that one of your enemies will defend yours.
Yet as the right-wing’s attack on left-wing rhetoric accelerates, progressives are likely to find that the credibility of their supporters matters. In recent years, the Foundation for Individual Rights in Education has made a name for itself representing people who have clashed with left-wing orthodoxies on college campuses, filling what some see as a gap in the work of the ‘ACLU. This has left FIRE uniquely positioned to fight the bans of critical race theory and other attempts to silence the left.
This is not the first time the ACLU has been torn by the scope of its commitment to free speech. J. Anthony Lukas wrote about an identity crisis similar to the ACLU in 1978, spurred in part by the defense of the Ku Klux Klan group. In a 1994 essay, then ACLU President Nadine Strossen accused “the ACLU of abandoning its traditional commitment to free speech and other classic civil liberties and becoming an organization. liberal “trendy” primarily concerned with equality and civil rights. “
So there is nothing new for the left to tire of defending reactionaries. But in the end, the ACLU has generally, in the teeth of internal conflict, stuck to its mission. Perhaps each generation needs to learn for itself that censorship is not a shortcut to justice.
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