After Neo-Nazis and Klansmen took to the streets in Charlottesville to kill one person and injure dozens more, I cancelled my monthly donation to the American Civil Liberties Union.
It was an act of resistance; one that might appear misguided. Some might believe my rage at the A.C.L.U. is misplaced when there are domestic terrorists bearing torches who better deserve activists’ righteous anger.
Yet, despite the good things free speech has fostered, free speech has been the rallying cry of hate groups who, without the permissions of the First Amendment, would have a much more difficult time organizing to disenfranchise marginalized people whose rights are already under threat.
Following the events in Charlottesville, the A.C.L.U. released a statement which included this passage:
The First Amendment is a critical part of our democracy, and it protects vile, hateful, and ignorant speech. For this reason, the A.C.L.U. of Virginia defended the white supremacists’ right to march. But we will not be silent in the face of white supremacy.
The First Amendment protecting “vile, hateful, and ignorant speech” is its pitfall. The concept of free speech works in theory––all people have a right to share their voice––but often fails in practice.
Rather than empowering all voices, free speech ignores the power dynamics this country was founded upon. Free speech is predicated on the notion that all those speaking are on an even playing field––politically, socially, and economically––when the reality of marginalized people’s lived experiences proves this untrue. In operating under the false assumption that equality has been achieved, it makes sense the First Amendment would treat all speech as if it carried equal weight.
However, history and current events demonstrate that simply uttering “all men are created equal” doesn’t make it so. By ignoring the systems of power this country was founded and continues to thrive upon, free speech operates as if the U.S. was not built on the backs of enslaved people. As if it were not specifically the LGBTQ community’s ability to marry that was legislated against, and interracial marriage before that. As if the socioeconomically disadvantaged have the same access to platforms to make their voices heard. Free speech assumes a place in the Constitution where power dynamics and our nation’s history of oppression are immaterial and ignored.
No, the A.C.L.U. “will not be silent in the face of white supremacy” because they are loudly emboldening it.
It is said the road to hell is paved in good intentions and the First Amendment is no exception. Those in power don’t need the First Amendment because they have the privilege necessary to force their voice upon those with less power. The least privileged among us was supposed to be who free speech is designed to protect.
However, because the practice of free speech operates in a bubble that assumes the validity and equality of all voices without regard to power dynamics, free speech, by its very nature, unwittingly elevates the voices of the most privileged among us––notably white, male, cis, straight, and Christian voices. Hatemongers know this and hide behind the First Amendment, especially when criticized––forgetting that criticism is a protected form of speech––cloaking themselves like armor against the consequences of their actions.
The First Amendment is one of the most cited pieces of the U.S.’s governmental documents and, arguably, one of the most misunderstood. The number of internet trolls who complain when their comments are deleted from a website or their post was removed from a Facebook wall that the page owner is practicing “censorship” and infringing upon their “free speech” is a testament to this fundamental lack of understanding.
The First Amendment is so misunderstood it appears its most staunch defenders at the A.C.L.U. are confused as to its practical application.
The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
It’s the peaceable part that was forgotten at Charlottesville. Though police declared the Unite the Right rally an unlawful assembly before it even began, talk is cheap when not adequately acted upon. For the A.C.L.U. to defend the rights of white supremacists to march after the rally was declared unlawful and violence was known to have broken out is ignorant and irresponsible at best and condoning Heather Heyer’s murder at worst.
With the exception of backyard barbeques, poolsides, and castle hallways, torches are not instruments of peaceable assembly. A car used as an instrument of murder does not fall under tactics of nonviolence. The organizers and primary attendees of peaceful assemblies do not directly causes death and injury.
One would think the A.C.L.U., being among the foremost authorities on the First Amendment, wouldn’t be confused as to this distinction.
I question the ethics of those who are more concerned about one’s ability to voice an opinion than they are about the people who are harmed by the actions guided by that opinion once it is voiced. To defend the free speech of domestic terrorists is akin to being a Nazi sympathizer. Because it is being a Nazi sympathizer.
Free speech, in theory, is a two-way street, but in practice people are hard-pressed to actualize the old adage of "I disapprove of what you say, but I will defend to the death your right to say it.” The reality looks like Charlottesville, with one group operating under the guise of free speech when their actions only serve to silence and kill those on the other side. This is not free speech, this is terrorism.
Free speech is not, nor should it be, all encompassing. This is outlined in the 1942 Supreme Court case Chaplinsky vs. New Hampshire in which the “fighting words doctrine” was penned:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
This was further reinforced in 1969 in Brandenburg vs. Ohio when it was ruled “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
This shows that, in the eyes of the law, terrorism and violence are not protected forms of speech. Nor is the incitement of violence free speech. For all of white supremacists’ hawking of “free speech, free speech,” they appear clueless as to these legal precedents that would shudder the very hate speech they hold so dear.
Once hate-mongering chants broke out at the Unite the Right rally, there was clear incitement to violence. That was when the events in Charlottesville stopped being about free speech. To dismiss the white supremacists’ march as a demonstration of free speech is to fundamentally misunderstand the First Amendment and condone domestic terrorism.