In a statement released Thursday, the national ACLU announced it has made a regressive decision to no longer defend certain forms of speech from government censor. In part, the ACLU claimed, "The First Amendment absolutely does not protect white supremacists seeking to incite or engage in violence."
Eugene Volokh believes the statement is in response not just to Charlottesville, where the ACLU correctly sided with the white supremacists against a government that tried to deny them a permit, but a new effort in San Francisco to rescind a permit granted to a group of Trump supporters for an August 26 rally.
Apparently, after the Charlottesville fallout, including resignations and pressure from big-dollar donors, the civil liberties group has chosen to abandon long-held principles and appease the Antifa terrorists.
This is not exactly a surprise. For the last decade or so the ACLU has become a boutique law firm for its Leftist donors, especially those hostile to another freedom protected by the First Amendment — freedom of religion. In case after case, the ACLU has sided against those seeking to practice and honor their faith, most especially the Christian faith.
Nevertheless, by refusing to defend those "seeking to incite or engage in violence," the ACLU is making an argument so intellectually sloppy, one can only imagine the ACLU of 40 years ago laughing it out the door.
Obviously, violence is not speech. Moreover, inciting violence is not speech. You cannot call on people to commit violence and hide behind the First Amendment. No one is arguing with the ACLU on this point. Moreover, the ACLU has never defended this kind of criminal speech.
The problem is that by condemning certain groups as violent before they have committed violence, the ACLU will now engage in the kind of pre-crime thought-policing we were warned about in the movie Minority Report. The ACLU also appears to be arguing that, no matter how peaceful they are, simply by showing up and expressing themselves, certain groups "seek to incite violence."
In other words, the same ACLU that successfully defended the rights of neo-Nazis to fly the swastika in Skokie, Illinois, 40 years ago, has done a complete flip-flop. They are now on the side of the "heckler's veto," where those offended by peaceful political expression (ideas, flags or symbols), are given the power — through violent or chaotic behavior — to take away another's speech rights.
No decent person will argue that the swastika is not a symbol of hate. Of course it is. The problem, however, is that once we declare the swastika off limits, what is next? In a free society, you cannot hand those who allow themselves to be incited to violence the right to take from others their right to free expression, no matter how evil their ideas might be.
The only line a free society can draw is one between political speech and political violence (or calling for violence). While I am in no way putting both on the same moral plane, a neo-Nazi has as much of a right to wear a swastika tattoo as a woman does to wear a short skirt. If any violence occurs as a result of either act, the only behavior not protected by the Constitution is the behavior of whoever crossed the line from speech to violence.
Moreover, as long as he is peaceful, it our government's primary responsibility to protect the pig with the swastika from violence, just as it is the primary responsibility of elected officials in San Francisco to protect Trump supporters. Rescinding their permit — even if they were neo-Nazis — is caving to the mob, is un-American.
As frustrating and maddening as freedom can sometimes be, this is the only way a civilized society can survive. This is the cost of being free, but compared to the alternative (a tyrannical government choosing what is and is not accepted speech) it is a very small cost.
Admittedly, I am a free speech extremist. I am also someone who sees a highly-organized effort among the Left and media to declare "hate speech" a form of violence. The intent behind this effort is neither noble nor misguided. The frightening goal here is to declare as illegal certain opinions, beliefs, arguments, gatherings, words, and religious doctrines. And this fascistic slippery-slope begins by branding ideas and symbols you disagree with as violence.
For all of its many flaws, at least on this front, the ACLU had stood fast as the canary in the coalmine of free speech. Now that canary is dead.