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. I volunteered with the A.C.L.U. as a law student in 2011, and I respect much of its work. But it should rethink how it understands free speech. By insisting on a narrow reading of the First Amendment, the organization provides free legal support to hate-based causes. More troubling, the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all. 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.
A black kid who gets thrown in jail for possessing a small amount of marijuana will face consequences that will directly affect his ability to have a voice in public life. How does the A.C.L.U.’s conception of free speech address that? The A.C.L.U. has demonstrated that it knows how to think about other rights in a broader context. It vigorously defends the consideration of race in university admissions, for example, even as conservative challengers insist on a colorblind notion of the right to equal protection. When it wants to approach an issue with sensitivity toward context, the A.C.L.U.
K-Sue Park is a housing attorney and the Critical Race Studies fellow at the U.C.L.A. School of Law.
Source: The New York Times