By David Cole
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 African-Americans 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 Donald 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 counter-protesters, 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, non-Christians, 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 right-wing 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 case-by-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.
David Cole is the Legal Director of the ACLU
The two most common uses of racist speech in contemporary society are in HipHop and among progressives, “white privilege”
Maybe in the view of privileged white people
You believe it is not used as a slur?
You said: “The two most common uses of racist speech in contemporary society”
Yes, it is both commonly used and used as a slur.
That’s a modification of your original comment
Yes David, white people have become accustomed to being the target of the only hate speech allowed.
There was an article in the Chron yesterday that asserted the best way to avoid being racist was to vote for people based on on their race. By being racist you could prove you are not racist.
True story, in 2008 after I voted at the Wildhorse poll location I was walking through the parking lot and overheard two white woman discussing how they had voted for Obama but also liked Alan Keyes. Total opposites of the political spectrum, the only thing they had in common was they were both black. Obviously these two ladies were voting by race.
Keith: I think both you and Jim are confirming the concerns of the far left. The key missing point from your discussion is the notion of white supremacy which is systemic and built into the system. It’s not just about racial slurs.
“Keith: I think both you and Jim are confirming the concerns of the far left” So masked thugs will hit us with bike locks?
This is from the article that Bryn cited yesterday:
The whole point of Bryn’s article, Kate’s speech, the leftist critique is that this isn’t just about hate speech, it’s about white supremacy, the system. And when you guy respond complaining about words, you’re missing the power of the left critique.
Be careful, there are people on the left who think that’s acceptable behavior.
It all depends on your world view. Is the US a Caucasian dominant country where secret cliques of white people make decisions or are we a pluralistic country with people in overlapping groups by race, economic status, religion and other metrics?
The left takes a monolithic view which I believe is very much out of date and less relevant every day. In this view white people are responsible for all problems as we control all events.
This view is not widely supported
Jim: Your comment is deeply ironic because the left itself is far from monolithic, so how they take a monolithic view is beyond me.
“so how they take a monolithic view is beyond me” It’s known as an echo chamber. As an example I can see something on the intercept, see it get picked up by the Daily Kos, then written about on HuffPost and shortly thereafter it’s an item on the City Council agenda. Straws would be a good example as would reserving cannabis licenses for criminals.
You’re really not understanding my point. For the sake of simplicity from my vantage point there are at least three different groups within what you might call “the left.” They have extremely different world views which actually causes quite a bit of conflict internally. There is no echo chamber because there is no agreement over either outcomes or means. You strangely seem to lack knowledge of this.
This (comments thus far) is getting just silly (yeah, another slur)… a pox on your houses (a damning curse)…
Get real! (both slur and curse)
David
How do you understand the statement you repeated after Bryn who cited it yesterday, taking into consideration that you are a Political Scientist by education ? . That statement does not make any sense for me . I don’t believe that the statement is about the colonial America and slavery or about the ancient Rome ? . Especially, what caught my attention is the second part of the statement which brought into the violent and frequent killing because of white supremacy . Is that statement is a pure demagogy or it has any meaning ? What is your thought or anybody thoughts about .
Beside the above, the most interesting part of the David Cole’s article for me is the part about the ACLU of Virginia which gave Kessler legal help to preserve permit and protest Confederate’s General Robert E. Lee monument removal instigated by mayor of Charlottesville
https://acluva.org/20108/aclu-of-virginia-response-to-governors-allegations-that-aclu-is-responsible-for-violence-in-charlottesville/
“That statement does not make any sense for me ”
And that’s the problem. If you understand how structural racism works, how past decisions have become embedded in the system then it makes perfect sense.
Some reading: https://www.theatlantic.com/politics/archive/2016/07/is-america-repeating-the-mistakes-of-1968/490568/
In terms of the ACLU’s role, that’s well known, they have going back to Skokie, Illinois practiced this, and they got burned by it. Not sure what you find so interesting about it.
Yes… true story… what is the structure of ‘hate crime’ (due to race) legislation? What races have been prosecuted under those laws? Indeed, there are remnants of ‘structural racism’… and they should be addressed and eliminated… yet, new ones (pay-back?) are being set up… we need to rid ourselves of them all…
I would argue you’re missing the point. Hate crime legislation isn’t about structural racism, it was an attempt to deal with the surface stuff we are seeing at Charlottesville. That’s the “easy” surface stuff.
David
I perfectly understand structural racism. I am from the country which lost 6 million citizens which included 3 million who got killed Jews due to structural racism and extermination . Most of the German Death Camps were built in Poland because of Poland central location in Europe. As you United State did nothing to prevent Holocaust . In contrary United States implemented in After the German occupation and Soviet occupations Poland with the half a million army inside occupied and murdered addition approximate half a million Poles sending them to concentration camps in Siberia (gulags)
During the 1930s and early 1940s, hundreds of thousands of Jews sought safe havens outside Nazi Germany occupied territory. Public opinion, motivated by economic fear, xenophobia, antisemitism, and isolationism, did not favor any increase in immigration to the United States, even as it became clear that Nazi Germany was targeting Jews for persecution.
Great Britain was not better the United States . Before WW II Palestine was a British Mandate and Brits only permitted 10,000 European Jews per year to settle in Palestine because of Brits -Mufti of Palestine deal.
America is not repeating mistake of 1968 . In America the structural racism is a American heritage and it will probably last another 100 years which was inherited from the colonial time . We could only hope that it will not get worse before it will get better .
The 1968 happened four years after the passage of the Civil Rights Act of 1964 and in 1968 Civil landmark piece of legislation, the Civil Right of Act of 1968 landmark piece was passed in April, effectively prohibiting housing discrimination based on race. , was passed in April, effectively prohibiting housing discrimination based on race. It did not fix the problem of the structural racism
If I look back to Donald Trump Presidential Campaign than have heard Trump saying many times that working Americans have become the forgotten Americans and Trump was making many times reference to inner cities of impoverished black neighborhoods.
If I read the article you provide the link for . Nixon in his acceptance speech; declared :
“Working Americans have become the forgotten Americans. In a time when the national rostrums and forums are given over to the shouters and protesters and demonstrators, they have become the silent Americans.”
Donald Trump met Nixon in 1989 . In one interview Trump was saying that Nixon was trying to convince him to run for office.
Nothing changed in this matter since 1968 in the presidential rhetoric’s in to regards to inner cities . We don’t have Martin Luther King and Malcolm X but we have Antifa & Black Lives Matter . To make black color more beautiful, black people were re-labeled to African -American . Polish -Americans calling themselves Polonia , Jews are now being classified as Caucasians .
I believe that you born after 1968 and you don’t remember Vietnam War . I watched on TV anti -Vietnam War propaganda created by soviets specialists to condemn American imperialism .
In 1968 due to structural racism in Polish United Workers Party (Polish Communist Party ) 30 thousand Jewish communist were condemned by their comrades from the Politburo , striped of Polish citizenship and expelled from Poland with their families . I was demonstrating against in 1968 as student and was beat up by communist party workers militia bused as counter demonstrators , armed with 2 inches thick electric cables cut in long pieces and given them as weapon against demonstrating students . This is how the structural racism works . It is not only in USA
“I perfectly understand structural racism. I am from the country which lost 6 million citizens which included 3 million who got killed Jews due to structural racism and extermination”
None of what you are describing is structural racism. What you’re describing is specific racism. So while you say you perfectly understand it, you’re not demonstrating an understanding.
David
Germans , Brits and Russians (not only ) have long history of structural racism and structural racism has many forms . In the USA the structural racism is deeply rooted in the colonial time and slavery . In the Western Hemisphere the United States has same problem with structural racism as a Brazil has in the Western Hemisphere . Israel has structural racism .
“Not sure what you find so interesting about it.”
Review his postings re: historical fact and context.
American pluralism is unfamiliar to him.
Probably not ‘unfamiliar’… more likely ignored or rejected… an ‘inconvenient concept’…
John
You are White Anglo Saxon . In a racially or ethically instigated conflicts or cleansing the color of skin or ethnicity would be a factor and nobody would be looking at your pluralistic view. Get real.
[moderator] edited
“Is the US a Caucasian dominant country where secret cliques of white people make decisions or are we a pluralistic country with people in overlapping groups by race, economic status, religion and other metrics?”
Often the way we chose to word a question delineates a predetermined way of considering it. Here you have given an either/or choice, neither of which fully applies. Historically we were definitely a Caucasian dominant country which allowed groups of white people, whether in secret or right out in the open to structure the society to their liking. It was shaped in such a way that white people have had the upper hand economically, socially and governmentally for generations.
Are we becoming a more pluralistic society with overlapping groups ? Absolutely, and I believe that is what the current white nationalist back lash is about. The fear of losing the false impression of white superiority and the reality of white privilege.
This discussion reminded me of an event that occurred during my first year of medical school. I had sub letted a room in my apartment to a South Korean grad student on her first experience out of country. My best friend a very fair, blonde, blue eyed med student was visiting me. After she left, my roommate said to me, “I do not understand. How can you two be friends ? You are so different.” I explained to her that first, I did not see us as so very different, and it was frequently people’s differences that were interesting and attractive to me. She shook her head and said “It is not like that at home. Everyone is the same”…. then again, wistfully….”all the same.”
I believe that what we are seeing is a fear of loss on several levels. First there is a fear of loss of “sameness” on the part of those whose preference, as was my roommate’s, for the comfort of sameness. This is happening at a time when the basic generationally passed on white privilege of our society is being challenged in favor of a more diverse system. Thus I believe that the chants of “Jews will not replace us” are only the crudest manifestation of the fears of many whites that they will be “displaced” from their more privileged position in favor of another group. Many in our society have this same fear which they have managed to harbor and nurse in more socially acceptable ( until recently) but none the less repressive ways.
“I believe that is what the current white nationalist back lash is about. The fear of losing the false impression of white superiority and the reality of white privilege.”
This the craziness of the “progressives” and the reason you lose so consistently. Donald Trump was created by Democratic Party Policies.
The Progressives are by and large not part of the Democratic Party, certainly not the formal apparatus. So again, a fundamental lack of understanding of the cleavages.
Perhaps I was not clear. I referenced two different groups and I do not believe they are the same though there is certainly some overlap. I understand that Bernie is not a Democrat and that Trump is only nominally a Republican.
However Tia has the “progressive” world view of events driven by the Democrats.
“Progressive” is an interesting term… appears to mean significant ‘change’ in some matters, ‘no change at all’ in other matters… particularly in Davis…
, ‘no change at all’ in other matters… particularly in Davis…
Mostly I agree however you have to admit the put the smack down on the straws.
Tia
I think it is already happening and whites are being replaced not only on privileged position but everywhere due to demographic map changes especially in the southern states . I don’t understand Hitler’s followers why they blaming Jews . Jews are being considered in USA as a white Caucasians and their population is around only 6 million. They are more worry than anybody else that they could be replaced from their privileged positions . For now anger is directed to the Confederate statues . What and who next ? Structural racism could fail one day if social status of less privileged would be ignored and forgotten . Nothing last forever .
OK… I didn’t buy in much to the ‘structural racism’ thing, particularly given trends of the last 50 years… will have to re-think, given actions on the east coast late this afternoon/early evening, to give an ‘executive pardon’ to someone who has been tried and found guilty of flaunting the judicial branch while “serving” as a “law enforcement officer”… prior to sentencing of said officer, and without the vetting of the pardon by DOJ… 34, 33, 32, 31, 30, 29… the clock is ticking… apologists for the executive issuing the pardon better work overtime this weekend…
Two racists in the news tonight… maybe three… all in current or former positions of ‘power’…
One got pardoned, one resigned in lieu of firing, and,…
Howard
A structural racism is just a enhanced another name for racism to make racism sound differently . Old tricks in propaganda . Racism is racism does not mater how you name it .
Perhaps… unsure at this point…
No, structural racism is a system that favors one race over another. For example if you have to show that you have an ancestor who came to this country before 1800 in order to run for president this will favor white people as they are both more likely to have this ancestor and be able to prove it. Likewise the NBA favors tall people and therefore is biased against people who have less height. This is why you don’t often see Asians or Hispanics or Samoans in the NBA.
Jim
Is not such thing as structural racism in USA . You don’t see much black people as a hokey players , swimmers in Olympic or golf . They are just good in different disciplines . Height is of course a factor but the little guys know that basket ball is not their domena and they have to play soccer . It nothing to do any racism . You observation remind me Darrell Hamamoto a Professor of Asian American Studies at the University of California, Davis … His work has generated controversy for producing porn movies as research.He is best known for his views on the desexualization of Asian American males in the media. Hamamoto has a dream that one day Asian men will be judged not by the color of their skin but by the character of their penis.
At 5 ft 3 in (1.60 m), _Muggsy Bogues is the shortest player ever to have played in the NBA
href=”https://en.wikipedia.org/wiki/List_of_shortest_players_in_National_Basketball_Association_history#/media/File:Muggsy_Bogues_(cropped).jpg”
“No, structural racism is a system that favors one race over another.”
Part right. But the key to the system is that it doesn’t necessarily intentionally favor one race over another. The institutions and norms become embedded within the system.
You really don’t get this concept Jerry and why it’s important. The reason structural racism is important is because the systems put in place do not have to intentionally discriminate against anyone and they could have been put in place a long time ago during a different time and place and still have an impact over the lives of people living today.