On Thursday, The New York Times published an opinion piece by a housing attorney named K-Sue Park that chastised the liberal-leaning American Civil Liberties Union (ACLU) for committing a cardinal sin for those who practice leftist groupthink: The ACLU protects the First Amendment rights of conservatives!
Seriously. Ms. Park actually believes that the ACLU needs to “rethink” the First Amendment, especially with regard to conservatives, libertarians, and other members on the Right. She writes as follows:
The American Civil Liberties Union has a long history of defending the First Amendment rights of groups on both the far left and the far right. This commitment led the organization to successfully sue the city of Charlottesville, Va., last week on behalf of a white supremacist rally organizer. The rally ended with a Nazi sympathizer plowing his car into a crowd, killing a counterprotester and injuring many.
After the A.C.L.U. was excoriated for its stance, it responded that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” Of course that’s true. The hope is that by successfully defending hate groups, its legal victories will fortify free-speech rights across the board: A rising tide lifts all boats, as it goes.
While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression.
At first, she recognizes that the First Amendment does protect the rights of extremists from the Left and the Right. It is true. There’s a Supreme Court case about it, too. However, Ms. Park implies that the legal standard is misguided and that the ACLU is wrong to defend it.
For marginalized communities, the power of expression is impoverished for reasons that have little to do with the First Amendment. Numerous other factors in the public sphere chill their voices but amplify others.
Most obviously, the power of speech remains proportional to wealth in this country, despite the growth of social media. When the Supreme Court did consider the impact of money on speech in Citizens United, it enabled corporations to translate wealth into direct political power. The A.C.L.U. wrongly supported this devastating ruling on First Amendment grounds.
Other forms of structural discrimination and violence also restrict the exercise of speech, such as police intimidation of African-Americans and Latinos. These communities know that most of the systematic harassment and threats that stifle their ability to speak have always occurred privately and diffusely, and in ways that will never end in a lawsuit.
This, as if people of color are incapable of speaking out because of real or perceived barriers that individuals may face in an overly complex world. By her logic, Citizens United v. FEC prevented people of color from speaking even though it opened up more free speech rights to corporations run by the very marginalized groups she claims to care for. Furthermore, she argues that police intimidation suppresses speech, as if individuals from various backgrounds and communities are incapable of vocally opposing police actions; this, as Black Lives Matter protests spread throughout the nation.
If this piece does not make sense at this point, it gets even crazier.
The government’s power is not the only thing that can degrade freedom of expression, which Justice Benjamin Cardozo once described as “the matrix, the indispensable condition, of nearly every other form of freedom.” The question the organization should ask itself is: Could prioritizing First Amendment rights make the distribution of power in this country even more unequal and further silence the communities most burdened by histories of censorship?
This is a vital question because a well-funded machinery ready to harass journalists and academics has arisen in the space beyond First Amendment litigation. If you challenge hateful speech, gird yourself for death threats and for your family to be harassed.
Left-wing academics across the country face this kind of speech suppression, yet they do not benefit from a strong, uniform legal response. Several black professors have been threatened with lynching, shooting or rape for denouncing white supremacy.
Government suppression takes more subtle forms, too. Some of the protesters at President Trump’s inauguration are facing felony riot charges and decades in prison. (The A.C.L.U. is defending only a handful of those 200-plus protesters.) States are considering laws that forgive motorists who drive into protesters. And police arrive with tanks and full weaponry at anti-racist protests but not at white supremacist rallies.
To answer her question: No. The First Amendment does not prioritize one individual or a group of individuals over others. The point of the First Amendment is to equalize the power disparity not between individuals but rather the government and the people. After fighting a Revolution against the tyrannical British who kept usurping our natural rights, the founding fathers emphasized that the people should have the capacity to express their grievances against the government without fear of prosecution. In essence, the First Amendment already provides the very freedom of expression for all individuals regardless of background.
Furthermore, in discussing instances where journalists and academics face harassment and speech suppression issues, she manages to whitewash how conservatives are mainly targeted for disruptive and, at times, violent protests. She manages to join the same line of reasoning evidenced by leftist Princeton professor Keeanga-Yamahtta Taylor, who penned an article in The Times claiming that right-wingers suppressed her speech by criticizing and mocking her commencement address at Hampshire College. That, of course, was malarkey, too.
It is also important to note that Ms. Park also argues that the charges against violent anti-Trump protesters amounted to “government suppression” when the First Amendment clearly delineates the right “of the people peaceably to assemble.” Riots, by definition, are not peaceful.
Ms. Park ends her article by calling on the ACLU to ditch First Amendment case law and to fit to a standard that ultimately puts right-wing speech on the chopping block.
The danger that communities face because of their speech isn’t equal. The A.C.L.U.’s decision to offer legal support to a right-wing cause, then a left-wing cause, won’t make it so. Rather, it perpetuates a misguided theory that all radical views are equal. And it fuels right-wing free-speech hypocrisy. Perhaps most painful, it also redistributes some of the substantial funds the organization has received to fight white supremacy toward defending that cause.
The A.C.L.U. needs a more contextual, creative advocacy when it comes to how it defends the freedom of speech. The group should imagine a holistic picture of how speech rights are under attack right now, not focus on only First Amendment case law. It must research how new threats to speech are connected to one another and to right-wing power. Acknowledging how criminal laws, voting laws, immigration laws, education laws and laws governing corporations can also curb expression would help it develop better policy positions.
This, again, is ridiculous. Considering that First Amendment case law allows the extremes on all sides to speak freely, it logically follows that people in the middle also have the capacity to speak out against those they disagree with. No other laws on the books, including criminal and immigration law, bar individuals from expressing their grievances. However, Ms. Park seeks to create the illusion for people of color that they possess no speech because of some ghost-like institution that is farfetched from legal reality.
Ms. Park could have saved space on Knucklehead Row™ by saying the following: Everyone has the right to speech regardless of their views and the First Amendment provides an opportunity for those who feel powerless to express their grievances without fear of prosecution. Of course, the Left seems more interested in spewing verbal vomit into The New York Times than actually educating people about the natural rights our Constitution codifies into law.