ACLU, Justice

ACLU Gets Comfortable With Complexity

A case-by-case approach is preferable to absolute Nazi defense, somewhat obviously.

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Nobody is trying to take away this jerk’s civil liberties. (Photo by Chip Somodevilla/Getty Images)

The ACLU is, arguably, the most important “resistance” organization in the country right now. It’s standing up to Trump and fighting him on all fronts. You certainly can’t say the same for the Democratic Party, for instance.

Where the organization stands on white supremacy matters. Not just because white supremacists are suddenly ascendant, but also because the ACLU serves an important signalling function.

All that’s happened on the right in the past decade, from Sarah Palin to the seat that went to Neil Gorsuch to Trump and now finally to Nazis, has lurched the Overton window to the right of where we used to fight on the American political spectrum. The ACLU has been trying to fight he same battles they’ve always fought, regardless of this dramatic shift in where we are as a country.

That’s why the organization initially defended the free speech rights of Nazi protesters in Charlottesville. Being able to gather and speak is a defining civil liberty. If you are going to call yourself a civil liberty organization, you have to defend the right for people to exercise those rights, regardless of how vile their speech turns out to be.

But, thing is, Nazis are not content to simply say what they have to say and go home. They’re bringing clubs and dressed in riot gear, spoiling for a fight. They’re bringing guns, trying to intimidate others from exercising their speech rights. And, you know, some of them are conducting domestic terrorism.

It’s not all “speech” with these guys, and that means we don’t have to protect and defend it.

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Yesterday, the ACLU’s position evolved. From the Wall Street Journal:

The revised policy marries the 97-year-old civil-rights group’s First Amendment work with the organization’s stance on firearms, which aligns with many municipalities and states that bar protesters from carrying weapons.

“If a protest group insists, ‘No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them. They can find someone else,” [ACLU Executive Director, Anthony Romero] said, adding that the decision was in keeping with a 2015 policy adopted by the ACLU’s national board in support of “reasonable” firearm regulation.

Mr. Romero said the ACLU would continue to deal with requests by white-supremacist groups and others for legal help on a case-by-case basis. “It’s neither a blanket no or a blanket yes,” he said.

Complexity, nuance, case-by-case analysis instead of absolutism, it sounds like the ACLU is being run by adults.

These issues are hard because there are valuable public interests that are in conflict. We have to protect the speech rights of those who say things we disagree with, AND we have to protect the speech rights of those who get run over by the people saying things we disagree with.

If you think the line between “speech” and “actions” is so easy to draw, then I posit that you have never been to a counter-Klan rally. I posit that you’ve never attempted to march on Selma. I posit you’ve never actually had the stones to confront an open white supremacist, to their face, armed with your “speech” while they are armed with their “speech and weapons.”

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Saying that these guys have the rights to say whatever they want right up until the point where they strike you is of little consolation to your jaw.

A case-by-case standard seems only appropriate given the times we live in. There are some alt-right groups who (I assume) are content to merely talk the talk and go home. The ACLU should defend vociferously their rights to make asses of themselves and get themselves fired. But there are other alt-right groups who want to use a heavy dose of intimidation while making their speeches. There are other groups who fully intend to start off talking and end up fighting.

The ACLU doesn’t have to defend those other groups. They have limited resources and there are worthier battles to be fought.

Besides, it’s not like Nazi groups are hard up for legal representation. I mean, hell, at this point would you be surprised if Jones Day or Morgan Lewis took one of these cases pro-bono? If you’re willing to defend the Nazi sympathizer in the White House, making the jump to actual Nazis isn’t all that hard.

Nazis will have their day in court. Heather Heyer will not. The ACLU should be protecting the civil liberties of the powerless, not the ascendant.

The bottom line is that the ACLU need not defend violent Nazis because there are more than enough powerful people willing to do that work. Suck on that for a minute.

ACLU Will No Longer Defend Hate Groups Protesting With Firearms [Wall Street Journal]

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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