After the deadly white supremacist rally in Charlottesville, Virginia, last weekend, the American Civil Liberties Union has come under fire for a lawsuit it filed in defense of the organizers' right to assemble. When Charlottesville city officials attempted to relocate the march a mile away from a site that had symbolic meaning to the white supremacists — a statue of Robert E. Lee in Emancipation Park — the ACLU intervened, arguing the government was overstepping its constitutional bounds. A day before the rally, a federal judge sided with the ACLU.
ACLU executive director Anthony D. Romero issued a statement on Aug. 15 that condemned the ideology of white supremacists while opposing the government's attempt to suppress their speech. The statement reads, in part:
Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open.
Not everyone in the organization agreed. One board member of the ACLU of Virginia, Waldo Jaquith, resigned over what he said was the organization's partial responsibility for the violence stemming from the rally that left 32-year-old counter-protester Heather Heyer dead. Jacquith announced the resignation in a tweet:
I just resigned from the ACLU of Virginia board.— Waldo Jaquith (@waldojaquith) August 13, 2017
What’s legal and what’s right are sometimes different. I won’t be a fig leaf for Nazis.
With a series of white supremacist rallies planned across California in the coming weeks, the ACLU of California issued a statement on Aug. 16 that included this:
If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.
At least one prominent legal scholar, UCLA law professor Eugene Volokh, read the statement to suggest the California chapters were shifting away from the national group's stance. The national ACLU later endorsed the ACLU of California's statement.
Ahilan Arulanantham, legal director of the ACLU of Southern California, says that after the violence in Charlottesville, the organization intends to make more careful judgments about the possibly violent intentions of any group that applies for its legal assistance.
"There's the saying, 'Fool me once, shame on you. Fool me twice, shame on me,'" Arulanantham told L.A. Weekly. "We will look at future intakes with an understanding that this is a group that is looking to incite violence or to engage in violence."
The ACLU may have a chance to test the principle if and when far-right organizers of a March on Google set a date to assemble in front of the tech giant's Venice Beach offices. The march was postponed earlier this week, with organizers citing "credible Alt Left [sic] terrorist threats for the safety of our citizen participants."
The stated aim of the march is to protest the recent firing of Google engineer James Danmore over a memo that stated women were biologically not suited for engineering jobs and that diversity policies were unfair. The website attached to the march says the event "condemns and disavows violence, hatred, and bigotry and all groups that espouse it such as White Nationalists, KKK, Antifa, and NeoNazis."
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The ACLU has a long tradition of "defending my enemy," standing up for the free-speech rights of individuals or groups whose ideology it condemns. Most famously, 40 years ago the ACLU defended the right of a small group of neo-Nazis to march through the Chicago suburb of Skokie, home to a large Jewish community including a number of Holocaust survivors.
Arulanantham says there are important differences between Skokie and Charlottesville, starting with the differences in size and the threat of violence.
"The protests that we saw in Charlottesville or other protests being planned now could lead to a different result than it would in Skokie, where there were a few people involved and there was no suggestion that they were going to be carrying assault rifles and wearing combat fatigues and be carrying shields and mace and things like that," he says.
"Certainly the videos of what I saw in Charlottesville, some of it looked much more like preparing a group for violent action than abstract teaching of anything," Arulanantham continues. "It’s not to say [the ACLU of Virginia] made the wrong decision in advance, because we didn’t know what that rally was going to look like. The ACLU of Virginia had to make a decision on very short notice."